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AN ORDINANCE AMENDING SECTIONS 1155.02, 1155.03, 1155.04, 1155.05, 1155.06, 1155.07,1155.08,1159.09, AND 1155.

99 OF THE HEALTH AND SANITATION CODE OF THE CITY OF MORGANTOWN, AS THE SAME APPLIES TO SMOKING REGULATION.
The City of Morgantown hereby ordains that Sections 1155.02, 1155.03, 1155.04, ] 155.05, 1155.06, 1155.07, 1155.08, 1155.09 and 1155.99 are amended as follows (New matter underlined, deleted matter struck through): 1155.02
(a)

FINDINGS AND PURPOSE. The United States Surgeon General has determined that involuntary inhalation of tobacco smoke is: (1) A cause of numerous diseases in healthy nonsmokers; and (2) A major contributor to indoor air pollution; and (3) That childlen, eldedy people and indi'l;!idtldiswith caldiovascuLtl alldlot tespitatOlY disease me at speciailisk. Has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer. Gl That children, hospitality workers, elderly people an individuals with cardiovascular andlor respiratory disease are at special risk. Accordingly, the purposes of this article are:
(1)

(b)

To protect the public health and welfare by prohibiting smoking in enclosed public places except in designated smoking <11 cas, and by legulating smokilig in places of employment and places of employment: To respond to ntllnerous studies which show that a majOlity of both nonsmokers and StnOkelSdesile to have restlietiom; 011 smoking in public places dnd places of employment, and To recognize that where the need to breathe smoke-free air conflicts with the desire to smoke, the need to breathe smoke-free air shall have priority.

1155.03

DEFINITIONS.

The following words and phrases, whenever used in this article shall be construed as defined in this section: fa] "Bal" means ale area which is primarily devoted to the set ving of ,tlcoholic beverages fol consumption by guests 011 the premises and in which the .tielving of food is only incidelltal to the consumption of such bevetages. Although d restautaut may contain a bar, "bal" shall not include the lestdmant dillillg mea. "Business" meaus any entity fonned for profit making purposes. "Dining mea" means any enclosed alea cont,tilling a counter 01 tables opon which meals ate set ved.

(b)

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"Employee" means any petson employed for direct and indirect Illonetmy wages 01 anything of value, or any person who volunteers for a nonplOfit entity. "Employer" IneallS any entity who employs the paid 01 \'olunteer set vices of one of more pcrsons. "Enclosed area" medns all space between a floor and ceiling which is enclosed on all sides by solid walls 01 windows (exclusive ofdoot 01 paS5agewaY5) which extend flom the fioot to the ceiling, including all space therein 5creened by partitions which do not extend to the ceiling Ot ate not solid, "office Lmd5c<tpillg" or similar stwctmes. "6rocery stOle" meali allYsupermarket, conveniellce stOle aad othel letail food production and matkcting e5tabli5hments. "Nonprofit entity" means <tnyentity whO!,eopeI<ttiom;me not committed to private fillancial gain. A public agcIlcy is not a nonprofit entity withill the meaning of this section. "Place of employment" means any enclosed atea uuder the contlol of a public 01 private employer which employees normally flequent duting the COUl5eof employment. ttl A private residence is not d pLtce of employ me lit tllileSS it i5 uscd <15 <l child calc 01 health cme facility. ffl The dining atea of a te5tamant i5 not a pbce of employment. "Public place" means allYerKlosed area to which the public is iIlvited 01 in which the public is permitted. A pri v,tte residence i5 lIot d public pidce. "Re5taUlant" Ineans any estdblishtnent which is primarily devoted to the 5C1 ving of food to the public, guests, patrons and employees a5 well as eb;ewhere, including cateling facilitie,~. "Restautant" shall not include a cocktdiJ lounge 01 tavern if the cocktailloul1ge 01 tavern is a bar a5 defined in subsection (a) heleof. "Retdi1 stOle" mealls any establishment that sells goods or sel vice.'idirectly to members of the general public including but Bot limited to gloCety .'itates, specialty stores, department stOles, pharmacies, banks, stations, repair 01 maintenance stOles, batber 01 beauty shops, clealler5 and laulldromats. "Retail tobacco store" lUeans a retdil stOICutilized prirndrily for the sale of tobacco products aud in which the sale ofothet products is merely incident,d. "smoking" means inhaling, exhaling, buming 01 carrying any lighted cigm, cigarette, pipe, plant or other sI1Iokh1gequipment ill any manner 01 in any form. "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profits or a person who volunteers his of her services for a nonprofit entity. "Employer" means a person, business, partnership, association, or corporation, including a municipal cOl:poration, trust, or nonprofit entity that employs the paid or volunteer services of one of more individual persons. "Enclosed area" means all space between a floor and a ceiling that is enclosed or partially enclosed with: (0 Solid walls or windows, inclusive of doorways: or Cii) solid walls with partitions and no windows. inclusive of doorways, that extend

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from the floor to the ceiling. "Place of employment" means any area under the control of a public or private employer that employees are required to enter, leave, or pass through during the course of employment, including private offices; work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas. A private residence, unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premise, is not a "place of employment" . "Public place" means any area to which the public is invited or in which the public is permitted, regardless of whether the building is owned in whole or in part by private persons or the city, or other local government entities. A "public place" includes, but is not limited to, hospitals, restaurants, retail stores, offices, commercial establishments, elevators, indoor theaters, public transit, libraries, museums, concert halls, public conveyances, educational facilities, nursing homes, auditoriums, meeting rooms, schools, exhibition halls, convention facilities, polling places, private clubs. gaming facilities, healthcare facilities or clinics, enclosed shopping centers, retail service establishments, financial institutions, educational facilities, ticket areas, public hearing facilities, public restrooms, waiting areas, lobbies, bars, taverns, bowling alleys, skating rinks, reception areas, attorney's and doctor's offices. A private residence is not a "public place" unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premises. "Retail store" means any establishment that sells goods or services directly to members of the general public including but not limited to grocery stores, specialty stores, department stores, pharmacies, banks, automobile dealerships, showrooms, professional offices. service stations, repair or maintenance stores, barber or beauty shops, cleaners and laundromats. "Smoking means inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette, pipe, plant or other smoking equipment in any manner or in any form. REGULATIONS FOR ENCLOSED CITY FACILITIES.
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1155.04

Ali enclosed facilities owned, leased plovisions of this article.

tented by the City shall be 50bject to the

All facilities including buildings, vehicles owned or operated by the City or any agency that receives any monetary SUppOltfrom City shall be subject to the provisions of this regulation. 1155.05 (a) REGULATION OF SMOKING IN ENCLOSED PUBLIC PLACES. Smoking shall be prohibited in all enclosed public places within the City, including, but not limited to the following places: GlOceIY stores.

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Elevatols. Restrooms. All means of public transit, including taxis and buses, and all areas, including ticket, boarding and waiting areas. All Retail stores. All Restaurants, bars and gaming establishments. Ret,lil StOlC';, except mea.'; in such stOle.';not opm to the public and all areas within retail tobacco stores. All waiting areas and lobbies in all businesses and nonprofit entities. RestdUlants, except that they may desiguate <t contiguous med up to fifty pet cent (50%) of the seating capacity of the restaurant as a smoking mea. Every room, chamber or place of meeting or public assembly, inc1duing school buildings under the control of any board, council, commission, committee, including joint committees or agencies of the City or any political subdivision of the State during such time as a public toeeting is ill plOgless, to the extent such place is subject to the jurisdiction of the City. All patient rooms, waiting rooms and other public areas in health facilities, including but not limited to hospitals, clinics, pharmacies, physical therapy facilities, doctors' offices and dentists' offices. Enclosed shopping 11lalis,unless the majol ity vote by the Me1chant' 5 Association can aglee to designated smoking meas within the common areas. Thc.K designated meas !>hallcontain not l1iOtetiMll fifty (50%) of the sedtilig withiu the common mea alid thit ty (30%) of the seating in the food COUlt arca. NOlismoking medS shall bc designated such that patrons would Hot-be 1equited to pass thlOugh smoking areas on d routine basis in order to patronize dll establishment 01 to leach a nonsmoking area. Notwithstanding any other provision of this section, an person who controls any establishment or facility described in this section may declare that entire establishment or facility as nonsmoking. In any dispute arising under article, the health concerns of the nonsmoker shall be given precedence.

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1155.06
(a)

REGULATION OF SMOKING IN ENCLOSED PLACES OF EMPLOYMENT. It shaH be the responsibility of employe!s to provide smoke-nee dlcas for nonsmoking employees within existing facilities to the maxitntltn extent possible but employers ate not requited to inCUl any expc1lse to make stlUcttll 211 Ot othel physical modifications ill plOviding these areas. It shall be the responsibility of employers to provide a smoke-free workplace for all employees. Nonsmoking aleas shall be desigllated such that employee,,; would 1I0t be leguII ed to pass through smoking areas on a loutine basis in Older to pel fOlIli job duties or

(b)

to reach a llomm(oking area. Each employer having an enclosed place of employment located within the city 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. Each employer 5hall adopt, implement, make known and maintain a smoking policy which recognizes that where the need to breathe 5lOoke flee ait conflicts with the desile to smoke, the need to breathe smoke-hee air shall have priolity. The policy shall inclttde at a millimmll the following tequitclllellts. ttl Any employee in a place of employment ,';hallhave the right to designate his 01 hel wOlk areLta.';d 110t151l1okillg and to post the .';<tOle ith ared w appr opr iate signs. ffl In any disptlte at ising under the smoking policy, the health conCCIW; of the llonsmokel shall be gi veil plecedence. The smoking policy shall be shmed with any exi,.;ting 01 prospecti ve employee who Iequest,'; it. Notwithstanding any othel Plovision of this section, every e1l1ployershdll have the light to desigMte any place of employment, or any pOltion there, as a nonsmoking
area:

All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee. 1155.07
(a)

WHERE SMOKING NOT REGULATED. Notwithstanding any other provisions of this article to the contrary, the following areas shall not be subject to the smoking restrictions of this article: ffi Bars: Private residences, except when used as a child care or health Cill e facility ill facility, adult care or other similar social service care. Twenty five percent (25%) of hotel and motel rooms rented to guests. Retail tobacco stOles. The confcrellce Ot meeting lOoms or public and private <lssembly 100111$ of hotds, motels dl'tdfrateIl1al organizations while the5e place,.; are being used for pthate functions. A privdte enclosed office workplace occupied by only one person or occupied exclusively by sl1loker.';,even though such dlJ office WOlkplace llldY be "isited by nonsmokers. However, any employee has the light to desiguate hisfher work area as nonsmoking, and smoking shall be prohibited in all public waiting aiedS and lobbies. Bingo operations that distribute more than one hundred bingo cards or bingo

(b)

sheets as allowed under WV Code Section 47-20-28a as stipulated by the WV State Supreme Court of Appeals, Dec. 2,2003. Notwithstanding any other provision of this section, any person who controls any establishment described in this section may declare that entire establishment as a nonsmoking facility. POSTING OF SIGNS.

1155.08

(a)
(b)

Because ordinances regulating smoking are primarily self-enforcing, their success depends heavily upon adequate signage, Smoking 01 nonsmoking signs whichever cue ,tpptoptiate shall be conspicuously posted in every building or other place where smoking is regulated by this article, incltlding restroom!; dlld elevators, by the owner, operator, manager or other person having control of such building or other place. Every restamant sh,dl h,tve posted at each enhance a cOllspictlous sign cle<uly stating that a nOllsmoking section is av(tilable, dnd that smoking is allowed only ill the designdtcd sITioking med5. ENFORCEMENT. Althotlgh smoking Oldilldllces ate plimatily self tegtlhttillg tlnotlgh soci,d PICSStllC enrol cement of this dl tide shaH be the uItinMte lesponsibility of the City Managel or his/her designated dgents. Enforcement of this ordinance shall be implemented by the City Manager or his or her designated agent. Notice of the provisions set forth in this regulation shall be given to all applicants for a business license in the City of Morgantown. Any citizen who desires to register a complaint under this ordinance may initiate enforcement with the City Manager or his or her designated agent. The City Manager or designated agent shall inspect for compliance of this ordinance. Any owner, manager, operator or employee of any establishment regulated by this regulation shall inform persons violating this regulation of the appropriate provisions thereof.

1155.09

1155.99

PENALTY. Any person who violates any provision infraction. (a) (b) (c) of this article shall be guilty of an

The first infraction shall result in a fine of twelity five dollars ($25.00) one hundred dollars ($100.00). A second violation within a twelve-month period shall result in a fine of fifty dollars ($50.00) two hundred and fifty dollars ($250.00). A fine between two hundred and fifty dollars ($250.00) and five hundred dollars

($500.00) fifty dollars ($50.00) and oue hundled dollrn s ($100.00) shall be levied for each additional violation of this article within a twelve-month period. The City Manager, at his or her option may seek a petition for injunctive relief against any person or establishment who violates this article.

This ordinance shall be effective upon date of adoption.

FIRST READING: MAYOR

ADOPTED:

FILED: CITY CLERK

RECORDED: