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ORDINANCE NO. 7782

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS CONCERNING SMOKING IN PUBLIC PLACES REPEALING CHAPTER 9, ARTICLE 8 OF THE CODE OF THE CITY OF LAWRENCE, KANSAS, 2003 EDITION AND AMENDMENTS THERETO AND ENACTING NEW PROVISIONS IN PLACE THEREOF.

Whereas, numerous studies have determined that environmental tobacco smoke (ETS) is a significant source of exposure to toxic air indoor contaminants, causally associated with respiratory illnesses, including lung cancer, asthma and emphysema; and

Whereas, there is scientific research linking ETS with heart disease, responsible for an estimated 35,000 coronary heart disease deaths annually among adult nonsmokers in the United States as a result of ETS exposure.

Whereas, ETS carcinogens and poisons pose special risk to children, the elderly, food service employees, and individuals with cardiovascular disease and/or impaired respiratory function, including asthmatics and those with obstructive airway disease; and

Whereas, ETS exposure has been causally associated with developmental, respiratory, carcinogenic and cardiovascular effects, including fatal outcomes such as sudden infant death syndrome; and

Whereas, Tobacco use is the single largest cause of preventable death in Kansas, and according to the CDC’s Tobacco Control – State Highlights 2002, tobacco use alone was responsible for an estimated 3,800 deaths in Kansas in 1999, or 16% of the total deaths in Kansas in 1999; and

Whereas, the separation of smokers from nonsmokers within the same airspace does not eliminate the exposure of nonsmokers to ETS, given that no safe level of exposure to carcinogens has been found; and

Whereas, accordingly, the Lawrence City Commission recognizes that ETS poses a serious public health hazard, that nonsmokers need protection from ETS exposure and that therefore, regulation by the City Commission of the burning of tobacco in public places and places of employment is imperative in order to protect the public health and welfare of the citizens of the City of Lawrence;

NOW THEREFORE BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

Section 1. Chapter 9, Article 8, of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-801 PURPOSE.

The purpose of this Article is to (1) improve and protect the public’s health by eliminating smoking in public places and places of employment; (2) guarantee the right of nonsmokers to breathe smoke-free air; and (3) recognize that the need to breathe smoke-free air shall have priority over the choice to smoke.

9-802 DEFINITIONS.

The following words and phrases, whenever used in this Article, shall be construed as defined in this section:

(A) Business means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

(B) Employee means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity.

(C) Employer means any person, partnership, corporation, including a municipal corporation, or non-profit entity, which employs the services of one or more individual persons.

(D) Enclosed area means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, “office landscaping” or similar structures.

(E) Food Service Establishment shall mean any place in which food is served or is prepared for sale or service on the premises or elsewhere. Such term shall include, but not be limited to, fixed or mobile restaurant, coffee shop, cafeteria, short-order café, luncheonette, grill, tea room, sandwich shop, soda fountain, tavern, private club, roadside kitchen, commissary and any other private, public or nonprofit organization or institution routinely serving food and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.

(F) Licensed Premises shall mean any premises where alcoholic liquor or cereal malt beverages, or both, by the individual drink as defined by K.S.A. Chapter 41, and amendments thereto, is served or provided for consumption or use on the premises with or without charge. Such term shall include drinking establishments, Class A Private Clubs, Class B Private Clubs, and cereal malt beverage retailers, all as defined by K.S.A. Chapter 41, and amendments thereto, and this Code.

(G) Place of Employment means any enclosed area under the control of public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a “place of employment” unless it is used as a childcare, adult day care or health care facility.

(H) Private Place means any enclosed area to which the public is not invited or in which the public is not permitted, including but not limited to, personal residences or personal motor vehicles. A privately owned business, open to the public, is not a “private place.”

(I) Public Place means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, educational facilities, health facilities, laundromats, public transportation facilities, reception areas, production and marketing establishments, retail service establishments, retail stores, theaters, and waiting rooms. A private residence is not a “public place.”

(J) 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.

(K) Service Line means any indoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

(L) Smoking means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, weed, plant or combustible substance in any manner or in any form.

(M) Sports Arena means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

9-803 PROHIBITION OF SMOKING IN PUBLIC PLACES.

Smoking shall be prohibited in all enclosed public places within the City of Lawrence, including, but not limited to, the following places:

(A) Elevators.

(B) Restrooms, lobbies, reception areas, hallways, and any other common-use areas.

(C) Buses, bus terminals, taxicabs, train stations, the airport, and other facilities and means of public transit under the authority of the City of Lawrence, as well as ticket, boarding, and waiting areas of public transit depots.

(D) Service lines.

(E) Retail stores.

(F) All areas available to and customarily used by the general public in all businesses and non-profit entities patronized by the public, including, but not limited to, attorneys’ offices, and other offices, banks, laundromats, hotels, and motels.

(G) Food service establishments and licensed premises, excluding areas of a food service establishment or licensed premises that are not enclosed such as patios, outdoor dining areas, and courtyards.

(H) Galleries, libraries, museums, and grounds.

(I) Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except that performers may smoke when the smoking is a part of a stage production.

(J) Sports arenas and convention halls, including bowling facilities.

(K) Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including joint committees, or agencies of the City of Lawrence or any political subdivision of the State during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City of Lawrence.

(L) Waiting rooms, hallways, wards and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ offices, and dentists’ offices.

(M) Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.

(N) Polling places.

(O) Private clubs and fraternal organization facilities.

9-804 PROHIBITION OF SMOKING IN PLACES OF EMPLOYMENT.

(A) Smoking shall be prohibited in all enclosed places of employment within the City Lawrence.

(B) It shall be the responsibility of employers to provide a smoke-free workplace for all employees.

(C) Each employer having any enclosed place of employment located within the City of Lawrence shall adopt, implement, make known and maintain, a written smoking policy which shall contain the following requirements:

Smoking shall be prohibited in all enclosed facilities within a place 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 facilities.

(D) The smoking policy shall be communicated to all employees within four (4) weeks of the adoption of this ordinance.

(E) All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

9-805 ADDITIONAL DECLARATION OF NON-SMOKING ESTABLISHMENT.

Notwithstanding any other provision of this Article, any owner, operator, manager or other person who controls any establishment described in this Article may declare that entire establishment as a non-smoking establishment.

9-806 APPLICATION OF ARTICLE TO CITY-OWNED FACILITIES.

All enclosed facilities owned by the City of Lawrence shall be non-smoking at all times notwithstanding other provisions of this Article.

9-807 WHERE SMOKING IS NOT REGULATED: PRIVATE AND PUBLIC PLACES.

Notwithstanding any other provision of this Article to the contrary, the following

areas shall not be subject to the smoking restrictions of this Article:

(A) Private residences, except when used as a childcare, adult day care or health care facility;

(B) No more than twenty-five percent (25%) of hotel and motel rooms rented to guests.

(D) Restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while such places are being used for private functions except while contracted food or beverage service functions are taking place (including set-up, service and clean-up activities or when the room is used for exhibit activities).

(E) Outdoor places of employment except those covered in Section 9-805 of this article.

(F) Private places.

9-808 POSTING OF SIGNS.

(A) The owner, manager or other person having control of such building or other areas where smoking is prohibited by this Article shall have a conspicuously posted sign clearly stating that smoking is prohibited at each entrance and within the building or other areas where smoking is prohibited.

(B) Such "No Smoking" signs shall have bold lettering of not less than one (1) inch in height. The international "No Smoking" symbol may also be used (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with red bar across it).

(C) All ashtrays and other smoking paraphernalia shall be limited in facilities to that required for the enforcement of extinguishing of smoking materials in public places.

9-809 PUBLIC HEALTH EDUCATION: CITY-COUNTY HEALTH DEPARTMENT.

The Lawrence-Douglas County Health Department shall promote the purposes and requirements of this ordinance to the public affected by it, and guide owners, operators and managers in their compliance with it. Such promotion may include publication of a brochure for affected businesses and individuals explaining the provisions of this Article.

9-810 ENFORCEMENT.

(A) The Fire Chief or his or her designated agent shall be responsible for enforcing the provisions of this Article within the City.

(B) Notice of the provisions set forth in this Article shall be given to all applicants for a City business license and liquor or drinking establishment license.

(D) The Lawrence-Douglas County Fire & Medical Department, the Lawrence Police Department, the Lawrence-Douglas County Health Department, and the Codes Enforcement Division of the Department of Neighborhood Resources Department shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance of this Article.

(E) Any owner, manager, operator or employee of any establishment regulated by this Article shall be responsible for informing persons violating this Article of the provisions through appropriate signage.

9-811 NON-RETALIATION.

No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee, applicant for employment or customer because such employee, applicant or customer exercises any right to a smoke free environment afforded by this Article.

9-812 PURCHASE OF TOBACCO PRODUCTS, PERSON UNDER AGE 18.

It shall be unlawful for any person under the age of 18 to possess or to attempt to possess, or to purchase or to attempt to purchase cigarettes or tobacco products.

9-813 SALE OF TOBACCO PRODUCTS TO PERSONS UNDER AGE 18.

It shall be unlawful for any person to sell, furnish or distribute cigarettes or tobacco products to any person under 18 years of age.

9-814 VIOLATIONS AND PENALTIES.

(A) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this Article to fail to comply with all of its provisions, except for violations noted in Section (B) below.

(B) It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this Article.

1. A fine not exceeding One Hundred Dollars ($100.00) for the first violation.

2. A fine not exceeding Two Hundred Dollars ($200.00) for a second violation within a one (1) year period of the first violation.

3. A fine not exceeding Five Hundred Dollars ($500.00) for an additional violation within a one (1) year period of the first violation.

9-815 OTHER APPLICABLE LAWS.

This Article shall not be interpreted nor construed to permit smoking where it is otherwise restricted by other applicable laws.

9-816 SEVERABILITY.

If any provision, clause, sentence or paragraph of this Article or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are declared to be severable.

Section 2. Chapter 9, Article 8 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto is hereby repealed and of no further force and effect, it being the intent of this ordinance that its provisions be substituted in place thereof.

Section 3. This ordinance shall be effective as of the 1^st day of July, 2004.

Passed by the governing body this day of , 2004.

Mike Rundle, Mayor

ATTEST:

Frank S. Reeb, City Clerk

Approved as to form and legality:

David L. Corliss, Assistant City Manager

and Director of Legal Services