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ORD 680 06/28/2005 Ordinance 6 8 0 AN ORDINANCE OF THE CITY OF CIBOLO, TEXAS, PROVIDING REGULATIONS REGARDING SMOKING IN PUBLIC PLACES : PROVIDING A PENTALTY NOT TO EXCEED TWO HUNDRED DOLLARS ($200.00) FOR VIOLATIONS; PROVIDNG THAT THIS ORDINANCE IS CUMULATIVE OF ALL OTHER ORDINANCES OF THE CITY OF CIBOLO; PROVIDING FOR SEVERABILITY; PROVIDING SAVINGS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Cibolo, Texas, is a Home Rule Municipality located in Guadalupe County, Texas, created in accordance with provisions of the Texas Local Government Code and operating pursuant to its adopted City Charter and all applicable laws and enabling legislation of the State of Texas; and WHEREAS, the City of Cibolo, Texas, is governed by a Home Rule Charter that was approved by the Citizens of Cibolo in a duly called election held on September 11, 2004; and WHEREAS, the City of Cibolo, Texas, is a home rule municipality empowered under the Texas Local Government Code, Section 51.001, to adopt an ordinance or rule that is for the protection of the health, safety and welfare of its citizens; and WHEREAS, Section 48.01 of the V.T.C.A. Penal Code reference Smoking Tobacco; and WHEREAS, the City Council has considered the merits of this ordinance to establish regulations regarding smoking in public places to protect the health, safety, morals, and welfare of the community. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO, TEXAS... SECTION 1. INCORPORATION That the above and foregoing premises are true and correct and are incorporated herein and made part hereof for all purposes. SECTION 2. ADOPTION That the Ordinance provisions incorporated in Section 3 herein are hereby adopted by the City Council of the City of Cibolo, Texas. SECTION 3. PROVISIONS Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Bar means any commercial establishment that derives 65 percent or more of its annual gross sales receipts from the sale of alcoholic beverages as defined by the Texas Alcoholic Beverage Code and has a valid on-premises consumption license issued by the Texas Alcoholic Beverage Commission or a portion of a commercial/food establishment that is physically separated from the rest of the establishment by an impermeable barrier exclusive of appropriate openings for ingress and egress and that portion of the establishment is independently ventilated and that portion of the establishment derives 65 percent or more of its annual gross sales receipts from the sale of alcoholic beverages as defined by the Texas Alcoholic Beverage Code and has a valid on-premises consumption license issued by the Texas Alcoholic Beverage Commission. Director means the director of the department designated by the city manager to enforce and administer this article or the director's designated representative. Employee means any person who is employed by any employer for direct or indirect monetary wages or profit, or is in a position that would lead one to believe that such person is so employed. Employer means any person, partnership, corporation, association or other entity that employs one or more persons. Enclosed means closed in by a roof and walls with appropriate openings for ingress and egress. Food establishment means any operation engaged in the preparation or sale of prepared ready-to-eat food, if such operation accounts for more than 51 percent of annual gross sales receipts. For the purpose of this section a food establishment does not include an outdoor patio. Governmental entity means a municipality, county, school district, or appraisal district. Health care facility means any hospital or institution that provides medical or surgical services for patients. Independently ventilated means that the heating, ventilation and air conditioning system for a bar area does not allow for the mixing of air from the bar area to a public area or public place served by the same ventilation system or another ventilation system. Movie theater means any establishment engaged in the business of exhibiting motion pictures to the public. Outdoors means any area that is not enclosed. Public place means any enclosed area that is open to or is used by the general public, or that is a place of employment and includes, but is not limited to: retail stores, grocery stores, offices, professional, commercial or fmancial establishment, food establishments, movie theaters, public and private institutions of education, health care facilities, nursing and convalescent homes, residential treatment facilities, buildings owned or occupied by political subdivisions and public restrooms. For the purpose of this section, a public place does not include a private residence, bar, tobacco shop, hotel and motel rooms that are rented to guests,private clubs or outdoors. Private club means any building, premises or portion thereof which is wholly owned or leased by a non-profit corporation organized under Chapter 501(c)(3) of the United States Internal Revenue Code, as amended. Smoke or smoking means and includes the carrying or holding of a lighted pipe, cigar or cigarette of any kind, or any other lighted smoking equipment or device, and the lighting, emitting or exhaling the smoke of a pipe, cigar or cigarette of any kind. Tobacco means any tobacco, cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco, which may be utilized for smoking, chewing, inhalation or other means of ingestion or absorption. Tobacco shop means any commercial establishment that derives 51 percent of its annual gross receipts from the sale of tobacco and tobacco accessories. Smoking prohibited in public places. (a) Smoking is hereby prohibited in all public places within the city limits of the City of Cibolo. (b) It is an affirmative defense to prosecution under this section that the person was smoking in a private residence,bar,tobacco shop, a rented hotel or motel room of any kind,private clubs or outdoors. Signs. The owner or other person having authority to manage and control any area designated as a public place, pursuant to this article, shall post or cause to be posted and prominently displayed, and shall maintain "No Smoking" signs in a form approved by the City Manager or his director, in conspicuous locations within such public place. Such signs shall clearly and conspicuously recite the phrase "No Smoking" in the English and Spanish language and/or use the international no-smoking symbol. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited by this chapter by the owner, operator,manager, or other person having control of the area. Reporting violations. An owner,manager, operator, or employee of an establishment regulated by this ordinance shall inform persons violating this ordinance of the appropriate provisions thereof. This chapter shall be enforced by the city police department,the city health department, or their authorized designees. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the city police department. The city health department, fire department, or their designees shall,while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this chapter. Nonretaliation. 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 4 PENALTY Any person, firm, partnership or corporation who violates any provision of this section shall be guilty of a class "C" misdemeanor and shall be punished by a fine of not less than $75.00 nor more than $200.00; provided, however, that if a defendant has been previously convicted under this article, the defendant shall be fmed an amount not less than $200.00 nor more than $500.00. It is hereby declared that the culpable mental state required by Chapter 6.02 of the Texas Penal Code is specifically negated and clearly dispensed with, and such offense is declared to be a strict liability offense. SECTION 5. CUMULATIVE CLAUSE That this ordinance shall be cumulative of all provisions of the City of Cibolo, Texas, except where the provisions of this Ordinance are in direct conflict with the provisions of such Ordinances, in which event the more restrictive provision shall apply. SECTION 6. SEVERABILITY That it is hereby declared to be the intention of the City Council of the City of Cibolo 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 should be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance, since the same would have been enacted by the City Council without incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence,paragraph or section. SECTION 7. SAVINGS That all rights and privileges of the City of Cibolo are expressly saved as to any and all violations of the provisions of any Ordinances affecting the Smoking in Public Places, which have accrued at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such Ordinances, same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. SECTION 8. EFFECTIVE DATE That this Ordinance shall become effective at 12:00 a.m. on 18 July, 2005. AND IT IS SO ORDAINED. > L PASSED AND APPROVED by a vote of 3 for to 0 against this 28th day of June, 2005. APPROV. j jj1 /i / , 400Kr, Jo . y "utton AT EST: AJ 'vc we Ifin, City Secr,7r