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

 

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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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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. Employermeans 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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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 restaurantshall 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.

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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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            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.

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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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            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.

 

 

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            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

 

 


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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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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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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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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.

 

 

 

 

 


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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