Revised Ordinance is first, then the one submitted for the packet then the Substitute Ordinance 03-63(S), as proposed and written by Councilmember Stark follows, scroll down.
CITY
OF HOMER
HOMER,
ALASKA
Beck,
Yourkowski
ORDINANCE
03-63 Revised
AN
ORDINANCE OF THE CITY COUNCIL, OF THE CITY OF HOMER, ALASKA, AMENDING HOMER
CITY CODE CHAPTER 5.05, SMOKING PROHIBITED IN CITY STRUCTURES, VEHICLES AND
WATERCRAFT, TO CONTROL ENVIRONMENTAL TOBACCO SMOKE IN PUBLIC PLACES AND PLACES
OF EMPLOYMENT.
WHEREAS,
Numerous studies have found that tobacco smoke is a major contributor to indoor
air pollution, and that breathing second hand smoke, also known as
environmental tobacco smoke, is a cause of disease in healthy nonsmokers,
including heart disease, stroke, respiratory disease, and lung cancer; and
WHEREAS,
The National Cancer Institute (NCI) determined in 1999 that second hand
smoke/environmental tobacco smoke is responsible for the early deaths of up
to 53,000 Americans annually; and
WHEREAS,
The Public Health Service=s
National Toxicology Program has listed second hand smoke as a known carcinogen;
and
WHEREAS,
Second hand smoke is particularly hazardous to the elderly people, individuals
with cardiovascular disease, and individuals with impaired respiratory
function, including asthmatics and those with obstructive airway disease; and
WHEREAS,
Children exposed to second hand smoke have ain increased risk of asthma,
respiratory infections, sudden infant death syndrome, developmental
abnormalities and cancer; and
WHEREAS,
The Americans with Disabilities Act, which requires that disabled persons have
access to public places and workplaces, deems impaired respiratory function to
be a disability; and
WHEREAS,
The U.S. Surgeon General has determined that the simple separation of smokers
and nonsmokers within the same air space my reduce, but does not eliminate, the
exposure of nonsmokers to second hand smoke; and
WHEREAS,
The Environmental Protection Agency has determined that second hand smoke cannot
be reduced to safe levels in businesses by high rates of ventilation; and
WHEREAS,
Air cleaners, which are only capable of filtering the particulate matter and
odors in smoke, do not eliminate the known toxins in second hand smoke; and
Page
Two
Ordinance
03-63 Revised
City
of Homer
WHEREAS,
A significant amount of second hand smoke exposure occurs in the workplace;
and
WHEREAS,
Employees who work in smoke filled businesses suffer a 25% to 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; and
WHEREAS,
Smoke filled workplaces result in higher worker absenteeism due to respiratory disease, lower
productivity, higher cleaning and maintenance costs, increased health insurance rates and increased liability claims
for diseases related to exposure to second hand smoke; and
WHEREAS,
Numerous economic analyses examining restaurant and hotel receipts and
controlling for economic variables have shown either no difference or a
positive economic impact after enactment of laws requiring workplaces to be
smoke free; and
WHEREAS,
Creation of smoke free work places is sound economic policy and provides the
maximum level of employee health and safety; and
WHEREAS,
Smoking is a potential cause of fires; cigarette and cigar burns and ash stains
on merchandise and fixtures causes economic damage to businesses.
NOW,
THEREFORE, THE CITY OF HOMER ORDAINS:
Section
1. The title of Chapter 5.05, is hereby amended to read as follows:
Chapter
5.05
Smoking Prohibited in Public Places
and Places of Employment.
City Structures, Vehicles and Watercraft.
Section
2. Section 5.05.010, Legislative Intent, is hereby amended to read as
follows:
5.05.010
Legislative Intent. It is the
intent of this provision;
a. To accommodate
and protect the public health and welfare by prohibiting smoking in
public places and places of employment; of those who do not desire
to be exposed to second hand smoke while completing City business or performing
City employment responsibilities.
b.
to guarantee the right of nonsmokers to breathe smoke-free air, and to
establish that the need to breathe smoke-free air shall have priority over the
desire to smoke.(Ord. 03-36(A), 2003.)
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Three
Ordinance
03-63 Revised
City
of Homer
Section
3. Section 5.05.020, Definitions, is hereby amended to read as follows:
5.05.020
Definitions. a. “Attached
Bar”
means a bar area of a restaurant.
b.
“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 secondary to the
consumption of those beverages, including but not limited to taverns,
nightclubs, cocktail lounges and cabarets.
c.
“Business” means a person or other
entity operating any for-profit venture, including, but not limited to
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.
d.
“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.
e.
“Employer”means a person, including
but not limited to a business, municipal corporation, or non profit entity that
employs the services of one or more natural persons.
f.
“Enclosed
Area”
means all space between a floor and ceiling that is enclosed on all sides by
solid walls or windows (exclusive of doorways), which extend from the floor to
the ceiling.
g.
“Health
Care Facility”
means an office or institution providing care or treatment of diseases, whether
physical, mental, or emotional, or other medical, physiological, or
psychological conditions, including but not limited to, hospitals,
rehabilitation hospitals or other clinics, including weight control clinics,
nursing homes, homes for the aging or chronically ill, laboratories, and
offices of surgeons, chiropractors, physical therapists, physicians, dentists,
and all specialists within these professions. This definition shall include all
waiting rooms, hallways, private rooms, semi private rooms, and wards
within health care facilities.
h.
“Person” has the meaning given in
section 1.04.020.
i.
“Place
of Employment”
means an area under the control of a public or private employer that employees
normally frequent during the course of employment, including, but not limited
to, work areas, employee lounges, restrooms, conference rooms, meeting rooms,
classrooms, employee cafeterias, hallways, and vehicles. A private residence is
not a “place
of employment”
unless it is used as a child care, adult day care, or health care
facility.
j.
“Public
Buildings”
means b. The terms "public buildings and other areas owned
or operated by the City", or leased to the City. It
does not include public parks, sidewalks and streets, unless
located within fifty (50) feet of a petroleum fuel dispensing facility.
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Four
Ordinance
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of Homer
k.
“Public
Place” means an enclosed area to which the public
is invited or in which the pubic is permitted, including but not limited to
banks, 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 c are, adult day care, or health care facility.
l.
“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 an attached
bar.
m.
“Retail
Tobacco Store”
means a retail store utilized primarily for the sale of tobacco products and
accessories and in which the sale of other products is merely incidental.
n.
“Service
Line”
means an indoor line in which one (1) or more persons are waiting for or
receiving service of any kind, whether or not either service involves the
exchange of money.
o.
“Shopping
Mall”
means an enclosed public walkway or hall area that serves to connect retail or
professional establishments.
p.”Smoking” a. The term Asmoking@ means and includes the
inhaling, exhaling, burning or carrying of any lighted cigar, cigarette,
pipe, weed, or plant or other combustible substance in any manner or in
any form. smoking equipment or paraphernalia for tobacco or any
other weed or plant.
q.
“Sports
Arena”
means sports pavilions, stadiums, gymnasiums, health spas, boxing arenas,
swimming pools, roller and ice rinks, bowling alleys, and other similar places
where members of the general public assemble to engage in physical exercise,
participate in athletic competition, or witness sports or other events. (Ord. 03-36(A), 2003.)
Section
4. Section 5.05.030, Prohibition, is hereby amended to read as follows:
5.05.030
Prohibition. a. Smoking shall be prohibited in all enclosed public
places.
b.
Smoking is prohibited in all enclosed areas within places of employment without
exception. This includes including, but not limited to common work
areas, auditoriums, classrooms, conference and meeting rooms, private offices,
elevators, hallways, medical facilities, cafeterias, restaurants, bowling
facilities, employee lounges, stairs, restrooms, vehicles and all other
enclosed areas.
c
a. Smoking in any form is objectionable to many and shall not
be permitted in any public buildings owned by the City of Homer or leased by
the City as Lessee Smoking is prohibited n every public building
and in all motor vehicles or and watercraft owned, rented,
leased or used by the City of Homer, or by any departments, council,
commissions, or other agencies of the City.
This would exclude public sidewalks, streets, public parks, other
outdoor areas, and leased properties in which the City is the Lessor.
Page
Five
Ordinance
03-63 Revised
City
of Homer
b.
The City shall designate a Asmoking
area@ outside
City owned buildings and facilities, in which areas for smoking by non-minors
shall be allowed A smoking area shall be situated no closer than fifteen feet
from premise entrances, open doors or windows.
d.
c. Smoking shall be is prohibited on City
owned or operated
properties located within fifty (50) feet of a petroleum fuel dispensing
facility.
d.
The person in charge of City areas listed above shall make reasonable
efforts to prevent smoking in those areas in which smoking is not allowed and
shall post ANo
Smoking and Warning@
signs conspicuously in these areas.
e. The person in charge of a City area
listed above shall post signs in those areas in which smoking is allowed.
f.
It is the intention of the Homer City Council that the provisions of this
Ordinance shall become and made part of the Homer City Code, Homer, Alaska, and
the sections of this ordinance may be renumbered to accomplish such intention.
e.
Smoking is prohibited within a reasonable distance of twenty five (25) feet
outside an enclosed area where smoking is prohibited, except as provided in
section 5.05.035.
f.
No person shall locate or maintain a designated smoking area in such a place
that tobacco smoke is allowed to enter
an area where smoking is prohibited through entrances, windows, ventilation
systems or other means. (Ord.
03-36(A), 2003.)
Section
5. A new Section 5.05.032, Notice to employees, is hereby enacted to read
as follows:
5.05.032
Notice to employees. Every employer shall, in writing, communicate the
prohibition on smoking in enclosed places within places of employments to all
existing employees by December 31, 2003, and to all prospective employees upon
their application of employment.
Section
6. A new Section 5.05.035, Smoking areas and signage, is hereby enacted to
read as follows:
5.05.035
Smoking areas and signage. A. The City shall designate smoking area outside
public buildings where smoking by non-minors is allowed. A smoking area
established under this subsection shall be situated no closer than fifteen twenty-five feet from premise entrances,
windows and ventilation systems.
b.
The person in charge of a public building shall post signs in those areas where
smoking is allowed and shall post conspicuous “no smoking” signs in public
buildings and other area where smoking is not allowed.
b. “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 public place and place of employment
where smoking is prohibited by the owner, operator, manager, or other person in
control of that place.
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Ordinance
03-63 Revised
City
of Homer
c. Every public place and
place of employment where smoking is prohibited shall post at every entrance a
conspicuous sign clearly stating that smoking is prohibited.
d. All ashtrays and other
smoking paraphernalia shall be removed
from any area where smoking is prohibited by the owner, operator, manager, or
other person having control of the area.
Section
7. A new Section 5.05.038,
Reasonable effort to control smoking, is hereby enacted to read as follows:
5.05.038 Reasonable efforts to control smoking. A
person who owns, manages, operates, or otherwise controls a place where smoking
is prohibited by this chapter must make reasonable efforts to prevent persons
from smoking in these areas.
Section
8. Section 5.05.040, Penalties, is hereby amended to read as follows:
5.05.040
Violations and Penalties. a. A person who smokes in an
area where smoking is prohibited by the provisions of this chapter shall be
guilty of an infraction, punishable by a fine not exceeding fifty dollars.
($50).
b.
A person who owns, manages, operates, or otherwise controls a place of
employment or other place where smoking is prohibited by this chapter and who
fails to comply with the provisions of this chapter shall be guilty of an
infraction, punishable by a fine:
1.
not exceeding one hundred dollars ($100) for a first violation;
2.
not exceeding two hundred dollars ($200) for a second violation within one (1)
year;
3.
A fine not exceeding the five hundred dollars ($500) for each additional
violation within one (1) year.
c.
In addition to the fines established by this section, violation of this chapter
by a person who owns, manages, operates, or otherwise controls a public place
or place of employment may result in the suspension or revocation of any permit
or license issued to the person for the premises on which the violation
occurred.
d.
Each day on which a violation occurs shall be considered a separate and
distinct violation. Any person who violates the provisions of
Section 3 shall be fined a sum of $25.00. (Ord. 03-36(A), 2003.)
Section
9. A new Section, 5.05.050, Non Retaliation, is hereby enacted to read as
follows:
5.05.050
Non Retaliation. 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, or
customer exercises any rights afforded by this Chapter or reports or attempts
to prosecute a violation of this chapter.
Page
Seven
Ordinance
03-63 Revised
City
of Homer
Section
10. A new Section 5.05.055, Exemptions is hereby enacted to read as
follows:
5.05.055
Exemptions. The following are exempt from the provisions of this chapter. a.
A business or place owned and operated as a sole proprietorship with no
employees, except this exemption shall not extend to a business or placed
owned, operated, or used by a sole proprietorship as a child care, adult day
care of health care facility.
a.
Bars other than attached bars, provided that smoke from these places does not
infiltrate through doors, windows, or other passageways, into areas where
smoking is prohibited.
b.
Private residences, except when used as a licensed childcare, adult day care,
or health care facility.
c.
Hotel and motel rooms that are rented to guests and are designated as smoking
rooms; provided, however, that not more than twenty percent (20%) of rooms
rented to guests in a hotel or motel may be so designated.
d.
Retail tobacco stores, provided that smoke from such stores does not infiltrate
into areas where smoking is prohibited.
e.
Fraternal organizations, such as the Elks Lodge, the American Legion, and the
Veterans of Foreign Wars (VFW) Hall.
f.
Private and semiprivate rooms in nursing homes and long-term care facilities
that are occupied by one (1) or more persons, all of whom are smokers and have
requested in writing to be placed in a room where smoking is permitted.
g.
A business or place owned and operated with no employees that was established
prior to the passage date of this Ordinance, provided that smoke from such a
place does not infiltrate through doors, windows, or other passageways, into
areas where smoking is prohibited and that no children under the age of 18 are
permitted to enter these establishments. This exemption shall not extend to a
business or place owned or operated as a childcare, adult day care, healthcare,
or public transportation facility.
Section
11. A new Section, 5.05.060, Enforcement, is hereby enacted to read as
follows:
5.05.060 Enforcement. a. This
chapter shall be enforced by the City Manager or designee.
b. Notice of the provisions of this
chapter shall be given to all known applicants for a business license or those
known to be registering to collect sales tax.
c. Any citizen may register a
complaint of violation of this chapter with the City Manager.
d. The Fire Chief, or designee(s),
shall, while an establishment is undergoing
inspections conducted by the fire department, inspect for compliance
with this Chapter.
e. An owner, manager, operator, or
employee of a place where smoking is prohibited by this chapter shall inform
persons violating this chapter of the appropriate provisions thereof.
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Ordinance
03-63 Revised
City
of Homer
f Notwithstanding any other
provision of this chapter, an employee or private citizen may bring a civil action to enforce this chapter or
recover a civil penalty, or both. A civil penalty assessed by a court under
this subsection shall not exceed the amount of the penalty for an equivalent
infraction under 5.05.040.
g. In addition to the remedies
provided by the provisions of this chapter, the City Manager or any person
aggrieved by the failure of the owner, operator, manager, or other person in
control of a place of employment to comply with the provisions of this chapter
may apply for injunctive relief to enforce those provisions in any court of competent
jurisdiction.
Section
12. A new Section 5.05.070, Public Education, is hereby enacted to read as
follows:
5.05.070
Public Education. The City Manager shall engage in a continuing program to
explain and clarify the purposes and requirements of this chapter to citizens
affected by it and to guide owners, operators, and managers in their compliance
with it. The program may include publication of a brochure for affected
businesses and individuals explaining the provisions of this chapter.
Section
13. A new Section 5.05.080, Government Agency Cooperation, is hereby
enacted to read as follows:
Section
5.05.080, Government Agency Cooperation. The City Manager shall annually
request other governmental and educational agencies having facilities within the
City of Homer to establish local operational procedures in cooperation with the
compliance of this chapter. This includes urging all Federal, State and School
District agencies to update their existing smoking control regulations to be
consistent with the provisions of this chapter
Section
14. A new Section 5.05.090, Other Applicable Laws, is hereby enacted to
read as follows:
Section
5.05.090 Other Applicable Laws. This
chapter shall not be interpreted or construed to permit smoking where it is otherwise
restricted by other applicable laws.
Section
15. A new Section 5.05.100, Liberal
Construction, is hereby enacted to read as follows:
Section
5.05.100 Liberal Construction. This
chapter shall be liberally construed so as to further its purposes.
Page
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Ordinance
03-63 Revised
City
of Homer
Section 16. If any provision, clause, sentence, or
paragraphs of chapter 5.05or the application thereof to any person or
circumstances shall be held invalid, that invalidity shall not affect the other
provisions of chapter 5.05, which can be given effect without the invalid
provision or application, and to this end the provisions of chapter 5.05 are
declared to be severable.
Section
17. This ordinance is a general
ordinance of a permanent nature and shall be included in the City Code and
shall be effective forty five (45) days within enactment.
ENACTED
BY THE CITY COUNCIL OF HOMER, ALASKA this ______ day of _________, 2003. CITY OF HOMER
_____________________________
ATTEST: JACK
CUSHING, MAYOR
MARY
L CALHOUN, CMC, CITY CLERK
YES:
NO:
ABSTAIN:
ABSENT:
First
Reading:
Public
Hearing:
Second
Reading:
Effective
Date:
Reviewed
and Approved as to form and content:
__________________________
_________________________
Walt
E. Wrede, City Manager Gordon
J. Tans, City Attorney
Date:
_______________ Date:
_______________
Fiscal
Note: Fines, not budgeted.
C/C Beck and Yourkowski/mlc
CITY
OF HOMER
HOMER,
ALASKA
Beck, Yourkowski
ORDINANCE 03-63
AN ORDINANCE OF THE CITY COUNCIL, OF THE CITY OF HOMER, ALASKA, AMENDING HOMER CITY CODE CHAPTER 5.05, SMOKING PROHIBITED IN CITY STRUCTURES, VEHICLES AND WATERCRAFT, TO CONTROL ENVIRONMENTAL TOBACCO SMOKE IN PUBLIC PLACES AND PLACES OF EMPLOYMENT.
WHEREAS, Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing second hand smoke, also known as environmental tobacco smoke, is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer; and
WHEREAS, The National Cancer Institute (NCI) determined in 1999 that second hand smoke/environmental tobacco smoke is responsible for the early deaths of up to 53,000 Americans annually; and
WHEREAS, The Public Health Service=s National Toxicology Program has listed second hand smoke as a known carcinogen; and
WHEREAS, Second hand smoke is particularly hazardous to the elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and
WHEREAS, Children exposed to second hand smoke have ain increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities and cancer; and
WHEREAS, The Americans with Disabilities Act, which requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability; and
WHEREAS, The U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space my reduce, but does not eliminate, the exposure of nonsmokers to second hand smoke; and
WHEREAS, The Environmental Protection Agency has determined that second hand smoke cannot be reduced to safe levels in businesses by high rates of ventilation; and
WHEREAS, Air cleaners, which are only capable of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in second hand smoke; and
Page Two
Ordinance 03-63
City of Homer
WHEREAS, A significant amount of second hand smoke exposure occurs in the workplace;
and
WHEREAS, Employees who work in smoke filled businesses suffer a 25% to 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; and
WHEREAS, Smoke filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates and increased liability claims for diseases related to exposure to second hand smoke; and
WHEREAS, Numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smoke free; and
WHEREAS, Creation of smoke free work places is sound economic policy and provides the maximum level of employee health and safety; and
WHEREAS, Smoking is a potential cause of fires; cigarette and cigar burns and ash stains on merchandise and fixtures causes economic damage to businesses.
NOW, THEREFORE, THE CITY OF HOMER ORDAINS:
Section 1. The title of Chapter 5.05, is hereby amended to read as follows:
Chapter 5.05
Smoking Prohibited in Public Places and Places of Employment.
City Structures, Vehicles and Watercraft.
Section 2. Section 5.05.010, Legislative Intent, is hereby amended to read as follows:
5.05.010
Legislative Intent. It is the
intent of this provision;
a. To accommodate
and protect the public health and welfare by prohibiting smoking in
public places and places of employment; of those who do not desire
to be exposed to second hand smoke while completing City business or performing
City employment responsibilities.
b. to guarantee the right of nonsmokers to breathe smoke-free air, and to establish that the need to breathe smoke-free air shall have priority over the desire to smoke.(Ord. 03-36(A), 2003.)
Page Three
Ordinance 03-63
City of Homer
Section 3. Section 5.05.020, Definitions, is hereby amended to read as follows:
5.05.020
Definitions. a. AAttached
Bar@
means a bar area of a restaurant.
b. ABar@ 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 secondary to the
consumption of those beverages, including but not limited to taverns,
nightclubs, cocktail lounges and cabarets.
c. ABusiness@ means a person or other
entity operating any for-profit venture, including, but not limited to
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.
d. AEmployee@ 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.
e. AEmployer@ means a person, including
but not limited to a business, municipal corporation, or non profit entity that
employs the services of one or more natural persons.
f. AEnclosed Area@ means all space between a
floor and ceiling that is enclosed on all sides by solid walls or windows
(exclusive of doorways), which extend from the floor to the ceiling.
g. AHealth Care Facility@ means an office or
institution providing care or treatment of diseases, whether physical, mental,
or emotional, or other medical, physiological, or psychological conditions,
including but not limited to, hospitals, rehabilitation hospitals or other
clinics, including weight control clinics, nursing homes, homes for the aging
or chronically ill, laboratories, and offices of surgeons, chiropractors,
physical therapists, physicians, dentists, and all specialists within these
professions. This definition shall include all waiting rooms, hallways, private
rooms, semi private rooms, and wards within
health care facilities.
h. APerson@ has the meaning given in
section 1.04.020.
i. APlace of Employment@ means an area under the
control of a public or private employer that employees normally frequent during
the course of employment, including, but not limited to, work areas, employee
lounges, restrooms, conference rooms, meeting rooms, classrooms, employee
cafeterias, hallways, and vehicles. A private residence is not a Aplace of employment@ unless it is used as a
child care, adult day care, or health care facility.
j. APublic Buildings@ means b. The
terms "public buildings and other areas owned or operated by the City",
or leased to the City. It does not include public parks,
sidewalks and streets, unless located within fifty (50) feet of a petroleum fuel
dispensing facility.
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Ordinance 03-63
City of Homer
k. APublic Place@ means an enclosed area to which the public is invited or in which
the pubic is permitted, including but not limited to banks, 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 Apublic
place@
unless it is used as a child c are, adult day care, or health care facility.
l. ARestaurant@ 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 Arestaurant@shall include an attached
bar.
m. ARetail Tobacco Store@ means a retail store
utilized primarily for the sale of tobacco products and accessories and in
which the sale of other products is merely incidental.
n. AService Line@ means an indoor line in
which one (1) or more persons are waiting for or receiving service of any kind,
whether or not either service involves the exchange of money.
o. AShopping Mall@ means an enclosed public
walkway or hall area that serves to connect retail or professional
establishments.
p. ASmoking@ a. The term Asmoking@ means and includes the
inhaling, exhaling, burning or carrying of any lighted cigar, cigarette,
pipe, weed, plant or other combustible substance in any manner or in any form. smoking
equipment or paraphernalia for tobacco or any other weed or plant.
q. ASports Arena@ means sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events. (Ord. 03-36(A), 2003.)
Section 4. Section 5.05.030, Prohibition, is hereby amended to read as follows:
5.05.030 Prohibition. a. Smoking shall be prohibited in all enclosed public places.
b. Smoking
is prohibited in all enclosed areas within places of employment 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 areas.
c a.
Smoking in any form is objectionable to many and shall not be permitted in
any public buildings owned by the City of Homer or leased by the City as Lessee
Smoking is prohibited n every public building and in all motor
vehicles or and watercraft owned, rented, leased or used
by the City of Homer, or by any departments, council, commissions, or other
agencies of the City. This would
exclude public sidewalks, streets, public parks, other outdoor areas, and
leased properties in which the City is the Lessor.
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Ordinance 03-63
City of Homer
b. The
City shall designate a Asmoking
area@ outside City
owned buildings and facilities, in which areas for smoking by non-minors shall
be allowed A smoking area shall be situated no closer than fifteen feet from
premise entrances, open doors or windows.
d. c.
Smoking shall be is prohibited on City owned or operated properties located within
fifty (50) feet of a petroleum fuel dispensing facility.
d. The
person in charge of City areas listed above shall make reasonable efforts to
prevent smoking in those areas in which smoking is not allowed and shall post ANo Smoking and Warning@ signs conspicuously in
these areas.
e. The person in charge of a City area
listed above shall post signs in those areas in which smoking is allowed.
f. It is the
intention of the Homer City Council that the provisions of this Ordinance shall
become and made part of the Homer City Code, Homer, Alaska, and the sections of
this ordinance may be renumbered to accomplish such intention.
e. Smoking
is prohibited within a reasonable distance of twenty five (25) feet outside an
enclosed area where smoking is prohibited, except as provided in section
5.05.035.
f. No person shall locate or maintain a designated smoking area in such a place that tobacco smoke is allowed to enter an area where smoking is prohibited through entrances, windows, ventilation systems or other means. (Ord. 03-36(A), 2003.)
Section 5. A new Section 5.05.032, Notice to employees, is hereby enacted to read as follows:
5.05.032 Notice to employees. Every employer shall, in writing, communicate the prohibition on smoking in enclosed places within places of employments to all existing employees by December 31, 2003, and to all prospective employees upon their application of employment.
Section 6. A new Section 5.05.035, Smoking areas and signage, is hereby enacted to read as follows:
5.05.035
Smoking areas and signage. A. The City shall designate smoking area outside
public buildings where smoking by non-minors is allowed. A smoking area
established under this subsection shall be situated no closer than fifteen feet
from premise entrances, windows and ventilation systems.
b. The person in charge of a public building shall post signs in those areas where smoking is allowed and shall post conspicuous Ano smoking@ signs in public buildings and other area where smoking is not allowed.
Page Six
Ordinance 03-63
City of Homer
Section 7. A new Section 5.05.038, Reasonable effort to control smoking, is hereby enacted to read as follows:
5.05.038 Reasonable efforts to control smoking. A person who owns, manages, operates, or otherwise controls a place where smoking is prohibited by this chapter must make reasonable efforts to prevent persons from smoking in these areas.
Section 8. Section 5.05.040, Penalties, is hereby amended to read as follows:
5.05.040 Violations
and Penalties. a. A person who smokes in an area where
smoking is prohibited by the provisions of this chapter shall be guilty of an
infraction, punishable by a fine not exceeding fifty dollars. ($50).
b. A
person who owns, manages, operates, or otherwise controls a place of employment
or other place where smoking is prohibited by this chapter and who fails to
comply with the provisions of this chapter shall be guilty of an infraction,
punishable by a fine:
1. not
exceeding one hundred dollars ($100) for a first violation;
2. not
exceeding two hundred dollars ($200) for a second violation within one (1)
year;
3. A fine
not exceeding the five hundred dollars ($500) for each additional violation
within one (1) year.
c. In addition to the fines established by this section, violation of this chapter by a person who owns, manages, operates, or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred.
d. Each
day on which a violation occurs shall be considered a separate and distinct
violation. Any person who violates the provisions of Section 3 shall
be fined a sum of $25.00. (Ord. 03-36(A), 2003.)
Section 9. A new Section, 5.05.050, Non Retaliation, is hereby enacted to read as follows:
5.05.050 Non Retaliation. 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, or customer exercises any rights afforded by this Chapter or reports or attempts to prosecute a violation of this chapter.
Section 10. A new Section 5.05.055, Exemptions is hereby enacted to read as follows:
5.05.055
Exemptions. The following are exempt from the provisions of this chapter. a. A
business or place owned and operated as a sole proprietorship with no
employees, except this exemption shall not extend to a business or placed
owned, operated, or used by a sole proprietorship as a child care, adult day
care of health care facility.
Page Seven
Ordinance 03-63
City of Homer
Section 11. A new Section, 5.05.060, Enforcement, is hereby enacted to read as follows:
5.05.060 Enforcement.
a. This chapter shall be enforced by the City Manager or designee.
b. Notice of the provisions of this chapter shall be given to all known applicants for a business license or those known to be registering to collect sales tax.
c. Any
citizen may register a complaint of violation of this chapter with the City
Manager.
d. The Fire Chief, or designee(s), shall, while an establishment is undergoing inspections conducted by the fire department, inspect for compliance with this Chapter.
e. An owner, manager, operator, or employee of a place where smoking is prohibited by this chapter shall inform persons violating this chapter of the appropriate provisions thereof.
f. Notwithstanding any other provision of this chapter, an employee or private citizen may bring a civil action to enforce this chapter or recover a civil penalty, or both. A civil penalty assessed by a court under this subsection shall not exceed the amount of the penalty for an equivalent infraction under 5.05.040.
g. In addition to the remedies provided by the provisions of this chapter, the City Manager or any person aggrieved by the failure of the owner, operator, manager, or other person in control of a place of employment to comply with the provisions of this chapter may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.
Section 12. A new Section 5.05.070, Public Education, is hereby enacted to read as follows:
5.05.070 Public Education. The City Manager shall engage in a continuing program to explain and clarify the purposes and requirements of this chapter to citizens affected by it and to guide owners, operators, and managers in their compliance with it. The program may include publication of a brochure for affected businesses and individuals explaining the provisions of this chapter.
Section 13. A new Section 5.05.080, Government Agency Cooperation, is hereby enacted to read as follows:
Section 5.05.080, Government Agency Cooperation. The City Manager shall annually request other governmental and educational agencies having facilities within the City of Homer to establish local operational procedures in cooperation with the compliance of this chapter. This includes urging all Federal, State and School District agencies to update their existing smoking control regulations to be consistent with the provisions of this chapter
Page
Eight
Ordinance
03-63
City of Homer
Section 14. A new Section 5.05.090, Other Applicable Laws, is hereby enacted to read as follows:
Section 5.05.090 Other Applicable Laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
Section 15. A new Section 5.05.100, Liberal Construction, is hereby enacted to read as follows:
Section 5.05.100 Liberal Construction. This chapter shall be liberally construed so as to further its purposes.
Section 16. If any provision, clause, sentence, or paragraphs of chapter 5.05or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions of chapter 5.05, which can be given effect without the invalid provision or application, and to this end the provisions of chapter 5.05 are declared to be severable.
Section 17. This ordinance is a general ordinance of a permanent nature and shall be
included in the City Code and shall be effective forty five (45) days within
enactment.
ENACTED BY THE CITY COUNCIL OF HOMER,
ALASKA this ______ day of _________, 2003. CITY
OF HOMER
_____________________________
ATTEST: JACK
CUSHING, MAYOR
MARY
L CALHOUN, CMC, CITY CLERK
YES:
NO:
ABSTAIN:
ABSENT:
Page
Nine
Ordinance
03-63
City
of Homer
First
Reading:
Public
Hearing:
Second
Reading:
Effective
Date:
Reviewed
and Approved as to form and content:
__________________________ _________________________
Walt E. Wrede, City Manager Gordon J. Tans,
City Attorney
Date: _______________ Date:
_______________
Fiscal Note: Fines, not budgeted.
C/C Beck and Yourkowski/mlc
Reviewed by the City Attorney
XXXXXXXXXXXXX
CITY OF HOMER
HOMER, ALASKA
Stark
ORDINANCE 03-63(S)
AN ORDINANCE OF THE CITY COUNCIL AMENDING HOMER CITY CODE TITLE, 5 HEALTH AND PUBLIC SAFETY, BY ADDING A NEW CHAPTER 5.051 DISCLOSURE OF SMOKING/NON-SMOKING STATUS IN BUSINESSES SERVING THE WALK-IN PUBLIC.
WHEREAS, It is generally recognized that second-hand smoke is harmful to people’s health; and
WHEREAS, In our society it is generally acknowledged that citizens, if informed of conditions in a place of public accommodation, can make decisions on whether to patronize such place; and
WHEREAS, Employees in such places have the option to seek or terminate employment in such places; and
WHEREAS, The majority of business owners in Homer, including the City of Homer by Homer Code Chapter 5.05, have chosen to make their businesses smoke-free; and
WHEREAS, The minority of business owners who desire to allow smoking in their establishment in our free enterprise society, should have that right as long as the public enjoys full disclosure of such condition and is therefore able to make an informed decision as to whether to patronize such establishment; and
WHEREAS, The market and public opinion will then determine whether it is economically a good decision to allow or not allow smoking in such places, thereby making moot the need for the heavy hand of government to determine where and in what places citizens may indulge in a legal action and accomplishing the same objective that said government action might accomplish with a total prohibition of smoking.
NOW, THEREFORE, the City of Homer Ordains:
Section 1. Homer City Code is hereby amended to add Chapter 05.051 as follows:
Chapter 5.051
Disclosure of Smoking/Non-Smoking Status in Businesses Serving the Walk-in Public
Sections:
5.051.010 Legislative Intent
Page Two
Ordinance 03-63(S)
City of Homer
5.051.020 Definitions
5.051.030 Required Notices
5.051.040 Penalties
5.051.010 Legislative Intent. It is the intent of this Chapter to accommodate and protect the public health and welfare of those who do not desire to be exposed to second-hand smoke in businesses serving the public by full disclosure of whether such smoke may exist in that business.
5.051.010 Definitions. The term “smoking”means and includes the inhaling, exhaling, burning or carrying any lighted smoking equipment or paraphernalia for tobacco or any other weed or plant. “Second-hand smoke” means the smoke produced by smoking.
5.051.030 Required Notices. The owner or manager of any business serving walk-in public shall post notices on or near every public entrance to such business that are clearly visible to a normally observant person. Each notice shall be at least 8 square inches (i.e. 2"x 4”) and shall state whether smoking is permitted in such business. Examples could include but are not limited to the following: “Thank you for Not Smoking”, “Smoking not Permitted in this Establishment”, “Smoking Allowed Inside”, “Smoke if you Please”. Said owners or manager has the responsibility to enforce the no-smoking provision if the business is a no-smoking business.
5.051.040 Penalties. The manager of any business who is in violation of Section 5l.051.0930 after May 1, 2004, shall be fined a sum of $25.00.
Section 2. This ordinance is a general ordinance of a permanent nature and shall be included in the City Code.
ENACTED BY THE CITY COUNCIL OF HOMER, ALASKA this ______ day of _________, 2003.
CITY OF HOMER
_____________________________
ATTEST: JACK CUSHING, MAYOR
MARY L CALHOUN, CMC, CITY CLERK
Page Three
Ordinance 03-63(S)
City of Homer
YES:
NO:
ABSTAIN:
ABSENT:
First Reading:
Public Hearing:
Second Reading:
Effective Date:
Reviewed and Approved as to form and content:
__________________________ _________________________
Walt E. Wrede, City Manager Gordon J. Tans, City Attorney
Date: _______________ Date: _______________
Fiscal Note: Fines, not budgeted.
C/C Stark