AN ORDINANCE AMENDING CHAPTER 48 ENTITLED “SMOKING” OF THE CODE OF CIVIL AND CRIMINAL ORDINANCES OF THE CITY OF IRVING, TEXAS

, BY PROVIDING DEFINITIONS; PROHIBITING SMOKING IN CERTAIN PUBLIC PLACES; PROVIDING A TIME IN WHICH EXISTING ESTABLISHMENTS HAVE TO COMPLY; PROVIDING AFFIRMATIVE DEFENSES; PROVIDING FOR A PENALTY NOT TO EXCEED TWO THOUSAND ($2,000.00) DOLLARS FOR EACH OFFENSE; AND PROVIDING SEVERABILITY, REPEALER, AND SAVINGS CLAUSES. WHEREAS, tobacco use is the leading cause of preventable deaths in the United States with more than 443,000 deaths attributable to smoking and other forms of tobacco use each year according to the Centers for Disease Control and Prevention; and WHEREAS, findings by the U.S. Department of Health and Human Services and the Surgeon General confirm that tobacco use has a negative effect on almost every organ of the human body and that cigarette smoke contains over 60 carcinogens which have been linked to cancer; and WHEREAS, the U.S. Department of Health and Human Services and the Surgeon General have advised that exposure to second-hand smoke can cause such long-term complications as lung cancer; cancers of the cervix, bladder, mouth, kidney, pancreas and stomach; heart disease; stroke; osteoporosis; damage to the immune system; infertility; and pregnancy complications including premature birth, low birth weight, malformations, and still births; and WHEREAS, the City of Irving’s Board of Health (“Health Board”) has recommended that the City Council of the City of Irving amend the City’s current smoking ordinance to further restrict smoking in public places to combat the negative effects associated with smoking and tobacco use; and WHEREAS, after notice and public hearing, and upon consideration of the recommendation of the Health Board and of all testimony and information submitted during the public hearing, the City Council has determined that it is in the best interest of the public and in support of the health, safety, morals, and general welfare of the citizens of Irving that the City’s current smoking ordinance be amended; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF IRVING, TEXAS: SECTION 1. That the findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2. That Section 48-1 of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby amended by adding the following definitions to be inserted in alphabetical order: [Sec. 48-1. Definitions]

Patio means a defined, unenclosed outside seating area that is connected or associated with an establishment that is open to the public or a workplace. Smoke-free entrance zone means that area measured at a distance of twenty-five (25) feet horizontally from the center of the exterior side of any entrance door of any building where smoking is prohibited. Tobacco–related business means a retail or service establishment whose primary business involves the sale of tobacco, tobacco products, or tobacco smoking implements. SECTION 3. That Section 48-2 of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby amended in its entirety to read as follows: Sec. 48-2. Prohibited in certain areas.

A person commits an offense if he or she is smoking in any of the following areas: (1) An elevator; (2) A hospital or health care facility; (3) Any facility or building of a public or private primary or secondary school; or any seating area of an athletic facility (including an indoor or outdoor athletic facility) of a public or private primary or secondary school; or an enclosed theater, movie house, library, museum, intrastate bus or transit system bus; (4) Any public area of any building owned, operated or managed by the City, including, but not limited to, the Civic Center Complex, Texas Stadium, the Irving Convention Center, park buildings, recreation centers, Criminal Justice Center, fire stations, police and fire training centers, Irving Community Television Network building, Irving Arts Center, Municipal Service Center, municipal warehouses, and any seating area of an athletic facility (including an indoor or outdoor athletic facility); (5) The area within the perimeter fence, as defined by Chapter 36 of the Code of Civil and Criminal Ordinances of the City of Irving, Texas, around a municipal swimming pool; (6) Any public indoor area of any retail or service establishment serving the general public, including, but not limited to, any department store, grocery store, drug store, hotel, or motel; (7) Food products establishment; (8) Workplace Indoor area of a public facility, business, or commercial building; (9) Standing in line or a queue in a public area Service lines, including outdoor service lines; (10) Public rRestrooms;, lobbies, or reception areas inside of any building; (11) Any public indoor area of any facility or building of a public or private institution of higher education or any seating area of an athletic facility (including an indoor or outdoor athletic facility) of an institution of higher education; (12) Any area temporarily designated as nonsmoking by order of the fire chief or building official or their designees; when a potentially hazardous or unsafe situation exists; (13) Any other area with markings or signs which gives reasonable notice that the area is a no smoking area, regardless of whether the means of designating said area comply with this chapter or state law; (14) Bingo parlors; (15) Billiard halls or gaming facilities;

(16) Any means of public transportation, including, but not limited to, taxicabs, buses, or city-owned, operated, or contracted transportation systems.; (17) Restaurants, bars, or sports cafes; or (18) Within twenty-five (25) feet of all entrances and operable windows of all buildings covered by this chapter. Polling places; (19) Places of meeting or public assembly under the jurisdiction of the City of Irving; (20) Houses of worship; (21) Child care or adult day care facilities, including those located in a residential building; (22) Common indoor areas of apartment buildings, condominiums, townhomes, and multifamily dwellings; (23) Shopping malls; (24) Sports arenas; (25) All enclosed areas in non-residential buildings that are used as a place of employment; (26) Private clubs; (27) Private or semi-private rooms in nursing homes; (28) On patios; or (29) Within the smoke-free entrance zone of all buildings where smoking is prohibited under this chapter. SECTION 4. That Section 48-4 of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby amended in its entirety to read as follows: Sec. 48-4. Exceptions to smoking prohibited in certain areas.

(a) Smoking is not prohibited in the following places: (1) In designated sleeping rooms in a hotel or motel establishment that have been designated as smoking rooms by the owner, operator, or person in control of the hotel or motel, provided that the rooms are clearly identified to customers and employees by conspicuous signage and provided that air, gas, and smoke from each smoking area shall be contained within the designated smoking area and removed directly from the building such that there is no commingling of air with the nonsmoking areas. (2) A tobacco-related business. SECTION 5. That Section 48-5 of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby amended in its entirety to read as follows: Sec. 48-5. Affirmative defenses to smoking.

It is an affirmative defense to prosecution under section 48-2 if the person smoking was in a location that was: (1) A designated smoking area of a facility or establishment described in subsections (4), (6), (8), (11), or (17) of section 48-2 hotel or motel establishment which is posted as a smoking area with appropriate signs in accordance with section 48-4; or

(2) A retail or service establishment solely involved in the sale of tobacco, tobacco products, or smoking implements tobacco-related business. (3) An area that is for a participant in an authorized theatrical performance and the person smoking is a participant in the authorized theatrical performance; (4) An area of a shopping mall which is primarily designed as an open area or as hallways or as access between stores, if such area has not been designated by the owner or operator as nonsmoking; (5) A completely enclosed private office; (6) A workplace or a physically separated section of a workplace which is not open to the general public and all people at that workplace or that physically separated section of a workplace smoke; or (7) A physically separated and ventilated bar area of a restaurant. (8) A bingo parlor where persons under the age of eighteen (18) are not admitted or employed. (9) A billiard hall where persons under the age of eighteen (18) are not admitted or employed. SECTION 6. That Section 48-7 of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby repealed and this section shall be reserved for future use. SECTION 7. That Section 48-8 of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby amended in its entirety to read as follows: Sec. 48-8. Time for compliance.

(a) The owner or operator of all restaurants establishments where smoking is prohibited shall meet the requirements of this chapter. (b) Affirmative defenses. (1) It shall be an affirmative defense to the ventilation and separation requirements of this chapter that the owner or operator of a facility has designated the entire facility as a nonsmoking facility and has posted and maintained a sign at each entrance to the facility. The sign must be at least eight (8) inches by ten (10) inches with letters at least two (2) inches high with half-inch strokes in a color contrasting with the background that states “Smoking Not Permitted In This Facility,” and (2) Restaurants that were in existence on July 17, 1997, are not required to comply with the ventilation systems requirement until the earliest of the following: (a) One (1) year from January 1, 2007; (b) A change in certificate of occupancy; or (c) The facility is expanded or remodeled more than fifty-one (51) percent of the gross square footage. (3) Sports cafes that were in existence on July 17, 1997, are not required to comply with the ventilation system requirements unless the facility is expanded or more than fifty-one (51) percent of the gross square footage.

(4) In order for the affirmative defense to the ventilation systems requirement to apply to the existing restaurants prior to the earliest of the conditions above, or sports cafes prior to the condition above, the facilities shall be designated as a non-smoke free establishment and shall post and maintain a sign at each entrance to the facility at least eight (8) inches by ten (10) inches with letters at least two (2) inches high with half-inch strokes in a color contrasting with the background that states “This Facility Is Not Smoke Free.” (c) Restaurants meeting the ventilation and separation requirements of this chapter shall post and maintain a sign at each entrance to the facility at least eight (8) inches by ten (10) inches with letters at least two (2) inches high with half-inch strokes in a color contrasting with the background that states “This Is Not A Smoke Free Environment.” (b) Any place where smoking is prohibited under this chapter, but where smoking was legally permitted prior to September 19, 2013, shall comply with the provisions of this chapter no later than March 19, 2014. (c) Any currently existing establishment that has an existing patio where smoking was legally permitted prior to the effective date of this ordinance may continue to allow smoking on the patio, provided that ashtrays are made available on the patio to patrons of the establishment. The right of a existing establishment to continue to allow smoking on a patio shall cease at such time as either the certificate of occupancy or use of the establishment changes or the establishment voluntarily prohibits smoking on the patio, in which event the patio shall thereafter be required to comply with the provisions of this ordinance and smoking shall be prohibited thereon. SECTION 8. That Section 48-12 “Workplace Requirements” of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby repealed in its entirety and this section shall be reserved for future use. SECTION 9. That Section 48-13 “Smoking Prohibited in Designated Nonsmoking Area in Workplace” of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby repealed in its entirety and this section shall be reserved for future use. SECTION 10. That Section 48-14 “Nonsmoking Designation of Entire Workplace Allowed” of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby repealed in its entirety and this section shall be reserved for future use. SECTION 11. That Section 48-15 “Penalties” of Chapter 48 entitled “Smoking” of The Code of Civil and Criminal Ordinances of the City of Irving, Texas is hereby repealed in its entirety and this section shall be reserved for future use.

SECTION 12. Any person, firm, or corporation violating any of the provisions or terms of this ordinance shall be guilty of a misdemeanor and upon conviction, shall be fined a sum not to exceed $2,000.00 for each offense, and each and every violation or day such violation shall continue or exist, shall be deemed a separate offense. SECTION 13. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional or invalid by the judgment or decree of any court of competent jurisdiction, such decision shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance. SECTION 14. To the extent this ordinance conflicts with other ordinances of the City of Irving, Texas, the conflicting provisions of the other ordinances are hereby repealed to the extent of such conflict; however, all other provisions of said ordinances not in conflict herewith shall remain in full force and effect. SECTION 15. All rights and remedies of the City of Irving, Texas, are expressly saved as to any and all violations of the provisions of this ordinance. An offense committed before the effective date of this ordinance is governed by prior law in effect when the offense was committed.

PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF IRVING, TEXAS, on September 19, 2013. ________________________________ BETH VAN DUYNE MAYOR ATTEST:

_____________________________ Shanae Jennings City Secretary

APPROVED AS TO FORM:

_____________________________ Charles R. Anderson City Attorney

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