ORDINANCE NO

ORDINANCE NO. 8534

AN ORDINANCE AMENDING SECTIONS 9-802, 9-803, 9-804, 9-807, 9-808, 9-810, 9-811 AND 9-812 OF THE CITY CODE, PROVISIONS RELATED TO THE REGULATION OF SMOKING, TO INCORPORATE ADDITIONAL RESTRICTIONS CONTAINED IN THE KANSAS INDOOR CLEAN AIR ACT.

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

Section 1. Section 9-802 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

9-802 DEFINITIONS.

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

(A) Access point means the area within a ten foot radius outside of any doorway, open window or air intake leading into a building or facility that is not exempted from the application of the restrictions of this Article by Section 9-807 of this code, and amendments thereto.

(B) Bar means any indoor area that is operated and licensed for the sale and service of alcoholic beverages, including alcoholic liquor as defined in K.S.A. 41-102, and amendments thereto, or cereal malt beverages as defined in K.S.A. 41-2701, and amendments thereto, for on premises consumption.

(C) 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.

(D) 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.

(E) Employer means any person, partnership, corporation, association or organization, including municipal or non-profit entities, which employs one or more individual persons.

(F) Enclosed area means all space between a floor and ceiling which is enclosed on all sides by solid walls, windows or doorways 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, or similar structures.

For purposes of this section, the following shall not be considered an ‘‘enclosed area’’:

(1) Rooms or areas, enclosed by walls, windows or doorways, having neither a ceiling nor a roof and which are completely open to the elements and weather at all times; and

(2) Rooms or areas, enclosed by walls, fences, windows or doorways and a roof or ceiling, having openings that are permanently open to the elements and weather and which comprise an area that is at least 30% of the total perimeter wall area of such room or area.

(G) 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.

(H) Gaming floor means the area of a lottery gaming facility or racetrack gaming facility, as those terms are defined in K.S.A. 74-8702, and amendments thereto, where patrons engage in Class III gaming. The gaming floor shall not include any areas used for accounting, maintenance, surveillance, security, administrative offices, storage, cash or cash counting, records, food service, lodging or entertainment, except that the gaming floor may include a bar where alcoholic beverages are served so long as the bar is located entirely within the area where the Class III gaming is conducted.

(I) 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 clubs, Class B clubs, and cereal malt beverage retailers, all as defined by K.S.A. Chapter 41, and amendments thereto, and this Code.

(J) Medical care facility means a physician’s office, general hospital, special hospital, ambulatory surgery center or recuperation center, as defined by K.S.A. 65-425, and amendments thereto, and any psychiatric hospital licensed under K.S.A. 75-3307b, and amendments thereto.

(K) Outdoor recreational facility means a hunting, fishing, shooting or golf club, business or enterprise operated primarily for the benefit of its owners, members and their guests and not normally open to the general public.

(L) Place of employment means any enclosed area under the control of a public or private employer, including, but not limited to, work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways, that is used by employees during the course of employment. A private residence is not a place of employment unless it is used as a day care, as defined in K.S.A. 65-530, adult day care or health care facility.

(M) Private club means an outdoor recreational facility or other social, or recreational club operated primarily for the use of its owners, members and their guests that in its ordinary course of business is not open to the general public for which use of its facilities has substantial dues or membership fee requirements for its members.

(N) 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.”

(O) Public building means any building owned or operated by:

(1) The state, including any branch, department, agency, bureau, commission, authority or other instrumentality thereof;

(2) Any county, city, township, other political subdivision, including any commission, authority, agency or instrumentality thereof; or

(3) Any other separate corporate instrumentality or unit of the state or any municipality.

(P) Public meeting means any meeting open to the public pursuant to K.S.A. 75-4317 et seq., and amendments thereto, or any other law of this state.

(Q) Public place means any enclosed indoor areas open to the public or used by the general public including, but not limited to: Restaurants, banks, bars, food service establishments, retail service establishments, retail stores, public means of mass transportation, passenger elevators, health care institutions or any other place where health care services are provided to the public, medical care facilities, educational facilities, libraries, courtrooms, state, county or municipal public buildings, restrooms, grocery stores, school buses, museums, theaters, auditoriums, arenas and recreational facilities. For purposes of this section, a private residence shall not be considered a ‘‘public place’’ unless such residence is used as a day care, as defined in K.S.A. 65-530, adult day care or health care facility.

(R) 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.

(S) Smoking means possession of a cigarette, cigar, or pipe partially or wholly consisting of or containing burning vegetation, or possession of any other device containing burning vegetation that is used for the introduction of smoke from the burning vegetation into the human body. For the purposes of this definition, the term vegetation includes, but is not limited to, tobacco, but does not include any controlled substance listed in K.S.A. 65-4105 through K.S.A. 65-4113 inclusive, and amendments thereto.

(T) 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.

(U) Substantial dues or membership fee requirements means initiation costs, dues or fees proportional to the cost of membership in similarly-situated outdoor recreational facilities that are not considered nominal and implemented to otherwise avoid or evade legal restrictions on smoking.

(V) Tobacco Shop means a retail store operated primarily for the sale of tobacco, tobacco products and smoking devices and which derives not less than 65% of its gross receipts from the sale of tobacco. A business shall not be considered a tobacco shop if:

(1) Any of its gross receipts are derived from the sale of cereal malt beverages or alcoholic liquor, or it is located within or is a licensed premises.

(2) It is located within another business, in whole or in part, that is not exempt from the provisions of this Article.

(3) It has an entrance useable by the public that is located within a business that is not exempt from the provisions of this Article.

(4) The mandatory purchase of any tobacco or tobacco product is required for admission into the business.

(W) Wall means a side of a room, building or structure connecting the floor and ceiling or foundation and roof, including temporary, moveable, and retractable sides.

Section 2. Section 9-803 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

9-803 PROHIBITION OF SMOKING IN PUBLIC PLACES.

It shall be unlawful for a person to smoke in any access point, public meeting, or any enclosed public place including, but not limited to, the following places:

(A) Restrooms, lobbies, reception areas, hallways, and any other common-use area in public and private buildings, condominiums and multiple residence facilities.

(B) 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) Retail stores.

(E) 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.

(F) Food service establishments, bars and other licensed premises, excluding areas that are not enclosed.

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

(H) Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance.

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

(J) 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.

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

(L) Polling places.

(M) Private clubs and fraternal organization facilities, including Class A and B clubs as defined in K.S.A. 41-2601, and amendments thereto.

(N) Gaming floors.

Section 3. Section 9-804 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

9-804 PROHIBITION OF SMOKING IN PLACES OF EMPLOYMENT.

(A) It shall be unlawful for any person to smoke in any enclosed area that is a place of employment.

(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 work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, and all other enclosed areas.

(D) The smoking policy shall be communicated to all employees within one (1) week of its adoption and to all new employees upon hiring.

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

Section 4. Section 9-807 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

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 as a day care, as defined in K.S.A. 65-530, and amendments thereto, adult day care or health care facility;

(B) No more than twenty percent (20%) of hotel and motel rooms rented to guests.

(D) Outdoor places of employment except:

(1) Access points; and

(2) Areas covered in Section 9-805 of this article,

(E) Private places.

Section 5. Section 9-808 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

9-808 POSTING OF SIGNS.

(A) The owner, manager or other person having control of a public place, place of employment, or other area where smoking is prohibited by this Article shall post or cause to be posted a conspicuous sign at each entrance to such area clearly stating that smoking is prohibited by law within the area.

(B) Such "No Smoking" signs shall display the international “No Smoking” symbol and all required text shall be rendered in bold lettering of not less than one (1) inch in height. The international "No Smoking" symbol consists of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it.

Section 6. Section 9-810 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

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, but nothing in this section shall be interpreted to prohibit any other person who would otherwise be lawfully entitled to enforce the provisions of this Article from taking enforcement action under this Article.

(B) Notice of the provisions set forth in this Article shall be given to all applicants for a City retail 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 Planning and Development Services 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 premises regulated by this Article shall be responsible for informing persons violating this Article of its provisions through appropriate signage.

Section 7. Section 9-811 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

9-811 NON-RETALIATION.

No 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 reports or attempts to prosecute a violation of any of the provisions of this Article.

Section 8. Section 9-812 of the Code of the City of Lawrence, Kansas, 2009 Edition and amendments thereto, is hereby amended to read as follows:

9-812 VIOLATIONS AND PENALTIES.

(A) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any public place or other area where smoking is prohibited under this Article to fail to comply with any or all of its provisions.

(B) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any public place or other area where smoking is prohibited under this Article to allow smoking to occur where prohibited by this Article. Any such person allows smoking to occur under this section if he or she:

1. has knowledge that smoking is occurring, and;

2. acquiesces to the smoking under the totality of the circumstances.

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

(D) Any person who violates any provision of this Article shall be guilty of an ordinance tobacco infraction, punishable by:

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 a third or subsequent violation within a one (1) year period of the first violation.

4. For the purposes of this subsection, the number of violations within a year shall be measured by the date the smoking violations occur. Violations of this Article and the Kansas Indoor Clean Air Act, K.S.A. 21-4009 et. seq., and amendments thereto, shall both be considered prior violations for the purpose of this Article.

5. Each individual allowed to smoke in violation of this Article by a person who owns, manages, operates or otherwise controls the use of any public place, or other area where smoking is prohibited shall be considered a separate violation for purposes of determining the number of violations under this section.

Section 9. Sections 9-802, 9-803, 9-804, 9-807, 9-808, 9-810, 9-811 and 9-812 of the Code of the City of Lawrence, 2009 Edition, and amendments thereto, is hereby repealed, it being the intent to supersede those provisions with the provisions of this ordinance.

Section 10. Severability. If any section, clause, sentence, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this ordinance.

Section 11. This ordinance shall take effect and be in force on July 1, 2010 and upon its publication once in the official city newspaper as required by law.

PASSED by the Governing Body this _______ day of____________, 2010.

PASSED:

________________________

Mike Amyx, Mayor

ATTEST:

____________________________

Jonathan Douglass, City Clerk

APPROVED AS TO LEGAL FORM:

____________________________

Toni Ramirez Wheeler

Director of Legal Services