Loading...
HomeMy WebLinkAbout2009-05-26 Council Packet - Work SessionREMINDER: CITY COUNCIL WORK SESSION COUNCIL CHAMBERS MAY 26, 2009 6:00 P.M. SMOKING REGULATION REVIEW *A light meal will be provided. 12.40.010 Sections: 12.40.010 12.40.020 12.40.030 12.40.040 12.40.050 12.40.060 12.40.070 12.40.080 (Kenai Supp. No. 89, 12 -06) Chapter 12.40 REGULATION OF SMOKING IN EATING ESTABLISHMENTS AND BOWLING ALLEYS Definitions. Regulation of smoking in eating establishments and bowling alleys. Where smoking not regulated. Sign posting requirement. No retaliation. Violations and penalties. Enforcement. Other applicable laws. 12.40.010 Definitions. "Bar" means a premises licensed under AS 04.11.090 which does not employ any person under the age of twenty -one (21) and which does not serve any person under the age of twenty -one (21) unless accompanied by a parent or guardian, and where tobacco smoke cannot filter into any other area where smoking is prohibited through a passag »'ay, ventilation system or other means. A "bar" does not include areas in an eating establishment where alcoholic beverages may be served. "Eating establishment" means any restaurant, coffee shop, cafeteria, luncheonette, sandwich stand, soda fountain, private or public school cafeteria, fast food service and other establishments, including any bar area of any such establishment which is not an enclosed area, the primary purpose of which is to give or offer for sale food to the public and where cooked or otherwise prepared food is sold to the public for consumption on the premises, as well as kitchens in which food is prepared. "Enclosed area" means a ventilated area so that air from a smoking area is not drawn into or across the nonsmoking area where all space between a floor and ceiling is enclosed on all 214 sides by solid walls or windows, exclusive of doors or passage ways, which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend between the floor and ceiling or are not solid. The doors of an enclosed area should remain closed whenever practicable. "Operator" means and includes the owner, proprietor, manager, lessee, lessor, licensee or any other person exercising control over any eating establishment or bar. "Smoking" means the burning, inhaling or exhaling of a tobacco or carrying any lighted pipe, cigar, cigarette or other combustible substance in any manner or in any form. (Ords. 1998-2003, 2192-2006) 12.40.020 Regulation of smoking in eating establishments and bowling alleys. Smoking is prohibited and is unlawful within all indoor eating establishments and bowling alleys. (Ords. 1998 -2003, 2192 -2006) 12.40.030 Where smoking not regulated. Notwithstanding any other provision of this chapter, the following areas shall not be subject to the smoking restrictions of this chapter: (a) Bars; and (b) Eating establishments while in use in their entirety for private functions; and Any patio or other area of an eating establishment which is entirely open to the sky. (Ords. 1998 -2003, 2192 -2006) (c 12.40.040 Sign posting requirement. (a) The operator of a bar, eating establishment or bowling alley controlled by this chapter shall post signs stating "No Smoking," with letters of not less than two (2) inches in height or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it), and with letters of not less than one (1) inch in height, citing City of' Kenai Municipal Code Chapter 12.40. Signs shall be clearly, sufficiently and conspicuously posted in every location where smoking is controlled by this chapter. (b) Every operator of an eating establishment or bowling alley regulated by this chapter shall have posted at the entrance of the eating establishment or bowling alley a sign clearly stating "No Smoking," which meets the above described requirements. (Ords. 1998-2003, 2192-2006) 12.40.050 No retaliation. No person may retaliate or discriminate against any customer or employee because such person exercises any right to a smoke -free environment afforded by this chapter. (Ords. 1998- 2003,2192 -2006) 12.40.060 Violations and penalties. (a) It is unlawful for any person who operates any premises subject to regulation under this chapter to fail to comply with any provisions of this chapter. (b) It is unlawful for any person to smoke in any area where smoking is prohibited by this chapter. (c) Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by: (1) A fine not exceeding one hundred dollars ($100.00), plus any surcharge required to be imposed by AS 12.55.039, for a first violation within a twenty -four (24) month period; (2) A fine not exceeding two hundred dollars ($200.00), plus any surcharge required to be imposed by AS 12.55.039, for a second violation within a twenty -four (24) month period as measured from the date of first violation; or 214 -1 A fine not exceeding five hundred dollars ($500.00), plus any surcharge required to be imposed by AS 12.55.039, for a third or additional violations within a twenty -four (24) month period as measured from the date of first violation. (d) Each and every day that such violation continues shall be deemed a separate and distinct violation. Any person aggrieved by a violation or threatened violation of this chapter or the City may bring a civil action against a person who violates this chapter and may recover a civil penalty not to exceed three hundred dollars ($300.00) per violation. An action to enjoin a violation may be brought notwithstanding the availability of any other remedy. (Ords. 1998-2003, 2192-2006) (e) (3) 1.2.40.040 12.40.070 Enforcement. (a) Administration of this chapter shall be by the City Manager or his or her designee(s). Any person who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his or her designee(s). (b) Prior to citing an owner for violation of this chapter, the City shall provide the operator with a written warning for any such violation. Thereafter, in the case of the first violation of this chapter in any two -year period, the operator shall be subject to the penalties set forth in Section 12.40.060. (Ords. 1998-2003, 2192-2006) 12.40.080 Other applicable laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws or regulation. Where state law and the provisions of this chapter apply to the same area or activities, the more stringent provision creating a smoking prohibition shall apply. (Ords. 1998 -2003, 2192 -2006) (Kenai Supp. No. 89, 12 -06) KENALALASKA \v/ CITY OF KENAI ORDINANCE NO. 2390 -2009 G71/4n/ Suggested by: Councilor Smalley AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KENAI MUNICIPAL CODE CHAPTER 12.40 TO ELIMINATE SECONDHAND TOBACCO SMOKE EXPOSURE IN PLACES OF EMPLOYMENT AND OTHER PUBLIC PLACES. WHEREAS, the severe disease- causing and deadly harms of exposure to secondhand smoke have been documented by the U.S. Surgeon General and numerous other recognized scientific authorities; and, WHEREAS, exposure to secondhand smoke is recognized as a leading cause of preventable death and the U.S. Surgeon General has determined that exposure to secondhand smoke causes approximately 50,000 non smoker deaths from lung cancer and heart disease each year in the United States; and, WHEREAS, it has been determined by the U.S. Surgeon General that air ventilation systems and filtration /cleaning systems cannot effectively protect health from secondhand smoke and that only completely smoke -free environments can protect health; and, WHEREAS, workers and members of the public exposed to secondhand smoke for only a short period of time can experience adverse cardiovascular effects and there is no safe level of exposure to the many carcinogens in secondhand smoke; and, WHEREAS, the City Council hereby finds that it is in the public health, safety and welfare to supplement State regulation of the use of tobacco and tobacco products by prohibiting smoking in public places and places of employment within the City of Kenai. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that KMC 12.40 is hereby amended to read as follows on Attachment "A." PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 18th day of March, 2009. ATTEST: Carol L. Freas, City Clerk PAT PORTER, MAYOR New Text Underlined; [DELETED TEXT BRACKETED] Introduced: March 4, 2009 Adopted: March 18, 2009 Effective: April 18, 2009 Chapter 12.40 [REGULATION OF SMOKING IN EATING ESTABLISHMENTS AND BOWLING ALLEYS] SMOKING IN PLACES OF EMPLOYMENT AND PUBLIC PLACES 12.40.010 Definitions. 12.40.020 [REGULATIONS OF SMOKING IN EATING ESTABLISHMENTS AND BOWLING ALLEYS Smoking prohibited. 12.40.030 Reasonable distance. 12.40.0[3[40 Where smoking not [REGULATED] prohibited. 12.40.0[4]50 Sign posting requirement. 12.40.0[5]60 No retaliation nor waiver of rights. 12.40 Violations and penalties. 12.40.0[7]80 Enforcement. 12.40.0[8]90 Other applicable laws. 12.40.100 Liberal construction. 12.40.010 Definitions. ["BAR" MEANS A PREMISES LICENSED UNDER AS 04.11.090 WHICH DOES NOT EMPLOY ANY PERSON UNDER THE AGE OF TWENTY -ONE (21) AND WHICH DOES NOT SERVE ANY PERSON UNDER THE AGE OF TWENTY -ONE (21) UNLESS ACCOMPANIED BY A PARENT OR GUARDIAN, AND WHERE TOBACCO SMOKE CANNOT FILTER INTO ANY OTHER AREA WHERE SMOKING IS PROHIBITED THROUGH A PASSAGEWAY, VENTILATION SYSTEM OR OTHER MEANS. A "BAR" DOES NOT INCLUDE AREAS IN AN EATING ESTABLISHMENT WHERE ALCOI -IOLIC BEVERAGES MAY BE SERVED. "EATING ESTABLISHMENT" MEANS ANY RESTAURANT, COFFEE SHOP, CAFETERIA, LUNCHEONETTE, SANDWICH STAND, SODA FOUNTAIN, PRIVATE OR PUBLIC SCHOOL CAFETERIA, FAST FOOD SERVICE AND OTHER ESTABLISHMENTS, INCLUDING ANY BAR AREA OF ANY SUCH ESTABLISHMENT WHICH IS NOT AN ENCLOSED AREA, THE PRIMARY PURPOSE OF WHICH IS TO GIVE OR OFFER FOR SALE FOOD TO THE PUBLIC AND WHERE COOKED OR OTHERWISE PREPARED FOOD IS SOLD TO THE PUBLIC FOR CONSUMPTION ON THE PREMISES, AS WELL AS KITCHENS IN WHICH FOOD IS PREPARED. "ENCLOSED AREA" MEANS A VENTILATED AREA SO THAT AIR FROM A SMOKING AREA IS NOT DRAWN INTO OR ACROSS THE NONSMOKING AREA WHERE ALL SPACE BETWEEN A FLOOR AND CEILING 15 ENCLOSED ON ALL SIDES BY SOLID WALLS OR WINDOWS, EXCLUSIVE OF DOORS OR PASSAGE WAYS, WHICH EXTEND FROM THE FLOOR TO THE CEILING, INCLUDING ALL SPACE THEREIN SCREENED BY PARTITIONS WHICH DO NOT EXTEND BETWEEN THE FLOOR AND CEILING OR ARE NOT SOLID. THE DOORS OF AN ENCLOSED AREA SHOULD REMAIN CLOSED WHENEVER PRACTICABLE. "OPERATOR" MEANS AND INCLUDES THE OWNER, PROPRIETOR, MANAGER, LESSEE, LESSOR, LICENSEE OR ANY OTHER PERSON EXERCISING CONTROL OVER ANY EATING ESTABLISHMENT OR BAR. Ordinance No. 2390 -2009 ATTACHMENT "A" Page 1 of 6 "SMOKING" MEANS THE BURNING, INHALING OR. EXHALING OF A TOBACCO OR CARRYING ANY LIGHTED PIPE, CIGAR, CIGARETTE OR OTHER COMBUSTIBLE SUBSTANCE IN ANY MANNER OR IN ANY FORM.] "Business" means any legal entity, whether for profit or not-for-profit, that provides goods or services, including, but not limited to. a sole proprietorship, partnership, limited liability company. corporation. trust, membership organization or similar entity. "Employee" means any person who is employed by any employer for compensation or works for an employer as a volunteer. "Employer" means any person or business, including a municipal corporation or non- profit entity, who employs the services of one or more individual persons. "Enclosed area" means all space between a floor, a ceiling and surrounding walls, windows and doors, whether open or closed, temporary or permanent. An area is not enclosed if at least fifty percent (50 of the combined surface of the area's vertical places is permanently and directly open to the outdoors. "Health care facility" means a business, office or institution that provides care or treatment of diseases or disability, whether physical, mental or emotional. "'Place of employment" means an area under the control of a public or private employer including, but not limited to, work areas, private offices, employee lounges. restrooms, conference rooms, classrooms. cafeterias, hallways, and vehicles. A private residence is not a place of employment except during the time when used as a child care, adult care or health care facility on a fee for service basis. "Public place" means any enclosed area to which the public is invited or into which the public is permitted, including but not limited to, educational facilities, entertainment facilities, food and beverage service facilities, offices, retail stores, and transportation facilities and vehicles accessible to the general public. "Smoking" means inhaling. exhaling. burning or carrying any lighted or heated tobacco product or other plant material intended for inhalation. 12.40.020 [REGULATION OF SMOKING IN EATING ESTABLISHMENTS AND BOWLING ALLEYS.] Smoking_prohibited. [SMOKING IS PROHIBITED AND IS UNLAWFUL WITHIN ALL INDOOR EATING ESTABLISHMENTS AND BOWLING ALLEYS.] (a) Smoking is prohibited at the following places: All enclosed public places within the City of Kenai. (2) All enclosed areas that are places of employment. Ordinance No. 2390 -2009 ATTACHMENT "A" Page 2 of 6 (3) All enclosed areas on properties, including buildings or vehicles. owned or controlled by the Ci of Kenai and includin• eve room chamber .lace of meetin• or .ublic assembl under the control of the City of Kenai. (4) All areas within twenty (20) feet of each entrance to enclosed areas on properties owned or controlled by the City of Kenai including every room, chamber, place of meeting or public or public assembly under the control of the City of Kenai. (5) All areas within fifty (50) feet of each entrance to a hospital or medical clinic. (6) All outdoor arenas stadiums am.hitheaters and .ublic transit waiin areas exce.t in designated smoking areas, which may be established only in perimeter areas at least twenty (20) feet from bleachers grandstands, seating areas and concession stands. (7) All areas within twenty (20) feet of each entrance to enclosed areas at an establishment licensed under state law to sell alcoholic beverages for consumption on the premises. When an establishment licensed under state law to sell alcoholic beverages for consumption on the premises includes an entrance to an outdoor area such as a patio or deck. the minimum reasonable distance under KMC 12.40.030 shall be ten (10) feet. (8) "Reasonable Distance" areas as defined by KMC 12.40.030. 12.40.030 Reasonable distance. Ordinance No. 2390 -2009 (b) Smoking is prohibited on any property not listed in subsection "a" of this section, whether or not enclosed, if the owner, operator, manager, or other person having control of the property chooses to prohibit smoking. (c) This Chapter shall not be interpreted or construed to regulate smoking on property owned or controlled by the federal or state government. To ensure that smoke does not enter any enclosed area where smoking is prohibited by this Chapter through entrances, windows, ventilation systems or any other means, smoking shall occur only at a reasonable distance outside any enclosed public place or place of employment where smoking is prohibited. Unless otherwise stated under this Chapter, the minimum reasonable distance is twenty (20) feet. 12.40.0[3]40 Where smoking not [REGULATED] prohibited. [NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE FOLLOWING AREAS SHALL NOT BE SUBJECT TO THE SMOKING RESTRICTIONS OF THIS CHAPTER: (A) BARS; AND (B) EATING ESTABLISHMENTS WHILE IN USE IN THEIR ENTIRETY FOR PRIVATE FUNCTIONS; AND (C) ANY PATIO OR OTHER AREA OF AN EATING ESTABLISHMENT WHICH IS ENTIRELY OPEN TO THE SKY.] ATTACHMENT "A" Page 3 of 6 (a) Smoking is not prohibited in the following places: (1) Up to a maximum of twenty -five percent (25 percent of hotel and motel sleeping rooms rented to guests may be designated as smoking rooms if the hotel or motel designates at least seventy -five percent (75 percent of its rooms as permanently nonsmoking. Smoking rooms on the same floor must be contiguous and the status of rooms as smoking or nonsmoking may not be changed, except as to add additional nonsmoking rooms. (2) Outdoor areas of places of' employment except the outdoor areas identified under KMC 12.40.020. (3) Private residences. except during the time when used as a child care, adult care or health care facility on a fee for service basis. Individuals providing child care in a private residence on a fee for service basis shall disclose to parents or guardians of children cared for on the premises if the proprietor permits smoking outside of the hours when child care is provided. Disclosure shall include posting on the premises a conspicuous written notice and orally informing parents or guardians. (b) Nothing in this Chapter shall be construed or interpreted to provide any person a right to smoke on premises or property owned, leased or. under the legal control of another. 12.40.0[4]50 Sign posting and other requirements. [(A) THE OPERATOR OF A BAR, EATING ESTABLISHMENT OR BOWLING ALLEY CONTROLLED BY THIS CHAPTER SHALL POST SIGNS STATING "NO SMOKING," WITH LE 1 1 ERS OF NOT LESS THAN TWO (2) INCHES IN HEIGHT OR THE INTERNATIONAL "NO SMOKING" SYMBOL (CONSISTING OF A PICTORIAL REPRESENTATION OF A BURNING CIGARETTE ENCLOSED IN A RED CIRCLE WITH A RED BAR ACROSS IT), AND WITH LETTERS OF NOT LESS THAN ONE (1) INCH IN HEIGHT, CITING CITY OF KENAI MUNICIPAL CODE CHAPTER 12.40. SIGNS SHALL BE CLEARLY, SUFFICIENTLY AND CONSPICUOUSLY POSTED IN EVERY LOCATION WHERE SMOKING IS CONTROLLED BY THIS CHAPTER. (B) EVERY OPERATOR OF AN EATING ESTABLISHMENT OR BOWLING ALLEY REGULATED BY THIS CHAPTER SHALL HAVE POSTED AT THE ENTRANCE OF THE EATING ESTABLISHMENT OR BOWLING ALLEY A SIGN CLEARLY STATING "NO SMOKING," WHICH MEETS THE ABOVE DESCRIBED REQUIREMENTS.] (a) The owner. operator, manager or other person in control of a public place or place of employment where smoking is prohibited by this Chapter shall clearly and conspicuously place at every entrance "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it). (b) The owner, aerator, mana•er or othe erson in control of every hos•ital and medical clinic to which thischa pter applies shall post at every entrance a conspicuous sign clearly stating that smoking is prohibited within fifty (50) feet of the entrance to the building and within the building. 0 Ordinance No. 2390 -2009 ATTACHMENT "A" Page 4 of 6 (c) Employers shall provide a smoke -free workplace. and neither an employer nor a person having legal control of the premises may permit an employee, customer or other person to smoke inside enclosed areas subject to the requirements of this Chapter. (d) The owner, operator, manager or other person in control of a of any area where smoking is prohibited by this Chapter shall remove all ashtrays from the area, except those ashtrays for sale and not intended for use on the premises. (e) If an owner, operator, manager or other person in control of anv area where smoking is prohibited observes a person smoking in violation of this Chapter, he or she shall direct the person to stop smoking. If the person does not stop smoking, the owner, operator. manager or other person in control of the area shall ask the person to leave the premises. If the person in violation refuses to leave, the owner. operator, manager or other person in control shall report the violation. 12.40.0[5]60 No retaliation nor waiver of rights. [NO PERSON MAY RETALIATE OR DISCRIMINATE AGAINST ANY CUSTOMER OR EMPLOYEE BECAUSE SUCH PERSON EXERCISES ANY RIGHT TO A SMOKE -FREE ENVIRONMENT AFFORDED BY THIS CHAPTER.] (a) No .erson or em .lo er shall dischar e refuse to hire or in an other manner retaliate or discriminate against any employee, applicant for employment, or other individual because such employee, applicant for employment or individual reports a violation or otherwise insists upon compliance with any requirement of this Chapter. (c) (b) An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party. (c) Notwithstanding KMC 12.40.080(b), a violation of KMC 12.40.060 shall be punishable by a fine not to exceed five- hundred ($500) for each violation. 12.40.0[6]70 Violations and penalties. (a) It is unlawful for any owner, operator, manager or other person in control of any area where smoking is prohibited [PERSON WHO OPERATES ANY PREMISES SUBJECT TO REGULATION] under this C[C]hapter to fail to comply with any provisions of this chapter. (b) It is unlawful for any person to smoke in any area where smoking is prohibited by this C[C]hapter. Any person who violates any provision of this chapter shall be guilty of a violation [AN INFRACTION], punishable by: (1) A fine not exceeding one hundred dollars ($100.00), plus any surcharge required to be imposed by AS 12.55.039, for a [FIRST] violation [WITHIN A TWENTY -FOUR (24) MONTH PERIOD]; Ordinance No. 2390 -2009 ATTACHMENT "A" Page 5 of 6 (2) A fine not exceeding two hundred dollars ($200.00), plus any surcharge required to be imposed by AS 12.55.039, for a second violation within a twenty -four (24) month period as measured from the date of [FIRST] the most recent prior violation; or (3) A fine not exceeding five hundred dollars ($500.00), plus any surcharge required to be imposed by AS 12.55.039, for a third or additional violations within a twenty -four (24) month period as measured from the date [FIRST] of the most recent prior violation; (d) Each and every day that such violation continues shall be deemed a separate and distinct violation. (e) The City or a [ANY] person aggrieved by a violation or threatened violation of this C[C]hapter [OR THE CITY] may bring a civil action against a person who violates this C[C]hapter and may recover a civil penalty not to exceed three hundred dollars ($300.00) per violation. An action to enjoin a violation may be brought notwithstanding the availability of any other remedy. 12.40.0[7]80 Enforcement. (a) Administration of this C[C]hapter shall be by the City Manager or his or her designee(s). Any person who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his or her designee(s). (b) [PRIOR TO CITING AN OWNER FOR VIOLATION OF THIS CHAPTER, THE CITY SHALL PROVIDE THE OPERATOR WITH A WRITTEN WARNING FOR ANY SUCH VIOLATION. THEREAFTER, IN THE CASE OF THE FIRST VIOLATION OF THIS CHAPTER IN ANY TWO -YEAR PERIOD, THE OPERATOR SHALL BE SUBJECT TO THE PENALTIES SET FORTH IN SECTION 12.40.060] Prior to citing an owner, operator. manager or other person in control of any area where smoking is prohibited by this Chapter for an initial violation, the City shall provide the owner, operator, manager or other person in control with a written warning. Thereafter, the owner operator, manager or other person in control shall be subject to the penalties set forth in KMC 12.40.07. The written warning required by this subsection does not apply in the care of an individual person who unlawfully smoke in violation of KMC 12.40.070(b). (c) Notwithstanding the availability of any other remedy provided by the provisions of this Chapter. the City Manager or any person aggrieved by the failure of the owner operator, manager or other person in control of any area where smoking is prohibited to comply with the provisions of this Chapter may apply for injunctive relief to enforce these provisions in any court of competent jurisdiction. 12.40.0[8]90 Other applicable laws. This C[C]chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws or regulation. Where state law and the provisions of this chapter apply to the same area or activities, the more stringent provision creating a smoking prohibition shall apply. 12.40.100 Liberal Construction. ued so as to further its .0 .ores const This Chapter shall be liberal Ordinance No. 2390 -2009 ATTACHMENT "A" Page 6 of 6 Chapter 12.40 SMOKING IN PLACES OF EMPLOYMENT AND PUBLIC PLACES 12.40.010 Definitions. 12.40.020 Smoking prohibited. 12.40.030 Reasonable distance. 12.40.040 Where smoking not prohibited. 12.40.050 Sign posting requirement. 12.40.060 No retaliation nor waiver of rights. 12.40.070 Violations and penalties. 12.40.080 Enforcement. 12.40.090 Other applicable Taws. 12.40.100 Liberal construction. 12.40.010 Definitions. "Business" means any legal entity, whether for profit or not for profit, that provides goods or services, including, but not limited to, a sole proprietorship, partnership, limited liability company, corporation, trust, membership organization or similar entity. "Employee" means any person who is employed by any employer for compensation or works for an employer as a volunteer. "Employer" means any person or business, including a municipal corporation or non- profit entity, who employs the services of one or more individual persons. "Enclosed area" means all space between a floor, a ceiling and surrounding walls, windows and doors, whether open or closed, temporary or permanent. An area is not enclosed if at least fifty percent (50 of the combined surface of the area's vertical places is permanently and directly open to the outdoors. "Health care facility" means a business, office or institution that provides care or treatment of diseases or disability, whether physical, mental or emotional. "Place of employment" means an area under the control of a public or private employer including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, classrooms, cafeterias, hallways, and vehicles. A private residence is not a place of employment except during the time when used as a child care, adult care or health care facility on a fee for service basis. "Public place" means any enclosed area to which the public is invited or into which the public is permitted, including but not limited to, educational facilities, entertainment facilities, food and beverage service facilities, offices, retail stores, and transportation facilities and vehicles accessible to the general public. "Smoking" means inhaling, exhaling, burning or carrying any lighted or heated tobacco product or other plant material intended for inhalation. Ordinance No. 2390 -2009 unlegislative fore nformational draft Page 1 of 5 12.40.020 Smoking prohibited. (a) Smoking is prohibited at the following places: (1) All enclosed public places within the City of Kenai. (2) All enclosed areas that are places of employment. (3) All enclosed areas on properties, including buildings or vehicles, owned or controlled by the City of Kenai, and including every room, chamber, place of meeting or public assembly under the control of the City of Kenai. (4) All areas within twenty (20) feet of each entrance to enclosed areas on properties owned or controlled by the City of Kenai including every room, chamber, place of meeting or public or public assembly under the control of the City of Kenai. (5) Ordinance No. 2390 -2009 All areas within fifty (50) feet of each entrance to a hospital or medical clinic. (6) All outdoor arenas, stadiums, amphitheaters and public transit waiting areas except in designated smoking areas, which may be established only in perimeter areas at least twenty (20) feet from bleachers grandstands, seating areas and concession stands. (7) All areas within twenty (20) feet of each entrance to enclosed areas at an establishment licensed under state law to sell alcoholic beverages for consumption on the premises. When an establishment licensed under state law to sell alcoholic beverages for consumption on the premises includes an entrance to an outdoor area such as a patio or deck, the minimum reasonable distance under KMC 12.40.030 shall be ten (10) feet. (8) "Reasonable Distance" areas as defined by KMC 12.40.030. (b) Smoking is prohibited on any property not Listed in subsection "a" of this section, whether or not enclosed, if the owner, operator, manager, or other person having control of the property chooses to prohibit smoking. (c) This Chapter shall not be interpreted or construed to regulate smoking on property owned or controlled by the federal or state government. 12.40.030 Reasonable distance. To ensure that smoke does not enter any enclosed area where smoking is prohibited by this Chapter through entrances, windows, ventilation systems or any other means, smoking shall occur only at a reasonable distance outside any enclosed public place or place of employment where smoking is prohibited. Unless otherwise stated under this Chapter, the minimum reasonable distance is twenty (20) feet. 12.40.040 Where smoking not prohibited. unlegislative format informational draft Page 2 of 5 (a) Smoking is not prohibited in the following places: (1) Up to a maximum of twenty -five percent (25 percent of hotel and motel sleeping rooms rented to guests may be designated as smoking rooms if the hotel or motel designates at least seventy -five percent (75 percent of its rooms as permanently nonsmoking. Smoking rooms on the same floor must be contiguous and the status of rooms as smoking or nonsmoking may not be changed, except as to add additional nonsmoking rooms. (2) Outdoor areas of places of employment except the outdoor areas identified under KMC 12.40.020. (3) Private residences, except during the time when used as a child care, adult care, or health care facility on a fee for service basis. Individuals providing child care in a private residence on a fee- for service basis shall disclose to parents or guardians of children cared for on the premises if the proprietor permits smoking outside of the hours when child care is provided. Disclosure shall include posting on the premises a conspicuous written notice and orally informing parents or guardians. (b) Nothing in this Chapter shall be construed or interpreted to provide any person a right to smoke on premises or property owned, leased or under the legal control of another. 12.40.050 Sign posting and other requirements. (a) The owner, operator, manager or other person in control of a public place or place of employment where smoking is prohibited by this Chapter shall clearly and conspicuously place at every entrance "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it). (b) The owner, operator, manager or other person in control of every hospital and medical clinic to which this Chapter applies shall post at every entrance a conspicuous sign clearly stating that smoking is prohibited within fifty (50) feet of the entrance to the building and within the building. (e) Employers shall provide a smoke -free workplace, and neither an employer nor a person having legal control of the premises may permit an employee, customer or other person to smoke inside enclosed areas subject to the requirements of this Chapter. (d) The owner, operator, manager or other person in control of any area where smoking is prohibited by this Chapter shall remove all ashtrays from the area, except those ashtrays for sale and not intended for use on the premises. (e) If an owner, operator, manager or other person in control of any area where smoking is prohibited observes a person smoking in violation of this Chapter, he or she shall direct the person to stop smoking. If the person does not stop smoking, the owner, operator, manager or other person in control of the area shall ask the person to leave the premises. If the person in violation refuses to leave, the owner, operator, manager or other person in control shall report the violation. Ordinance No. 2390 -2009 unlegislative format informational draft Page 3 of 5 12.40.060 No retaliation nor waiver of rights. (a) No person or employer shall discharge, refuse to hire, or in any other manner retaliate or discriminate against any employee, applicant for employment, or other individual because such employee, applicant for employment or individual reports a violation or otherwise insists upon compliance with any requirement of this Chapter. (b) An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party. (c) Notwithstanding KMC 12.40.080(b), a violation of KMC 12.40.060 shall be punishable by a fine not to exceed five hundred ($500) for each violation. 12.40.070 Violations and penalties. (a) It is unlawful for any owner, operator, manager or other person in control of any area where smoking is prohibited under this Chapter to fail to comply with any provisions of this Chapter. (b) It is unlawful for any person to smoke in any area where smoking is prohibited by this Chapter. (c) Any person who violates any provision of this chapter shall be guilty of a violation punishable by: (1) A fine not exceeding one hundred dollars ($100.00), plus any surcharge required to be imposed by AS 12.55.039, for a violation; (2) A fine not exceeding two hundred dollars ($200.00), plus any surcharge required to be imposed by AS 12.55.039, for a second violation within a twenty -four (24) month period as measured from the date of the most recent prior violation; or (3) A fine not exceeding five hundred dollars ($500.00), plus any surcharge required to be imposed by AS 12.55.039, for a third or additional violations within a twenty -four (24) month period as measured from the date of the most recent prior violation; (d) Each and every day that such violation continues shall be deemed a separate and distinct violation. (e) The City or a person aggrieved by a violation or threatened violation of this Chapter may bring a civil action against a person who violates this chapter and may recover a civil penalty not to exceed three hundred dollars ($300.00) per violation. An action to enjoin a violation may be brought notwithstanding the availability of any other remedy. 12.40.080 Enforcement. (a) Administration of this Chapter shall be by the City Manager or his or her designee(s). Any person who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his or her designee(s). (b) Prior to citing an owner, operator, manager or other person in control of any area where smoking is prohibited by this Chapter for an initial violation, the City shall provide the owner, operator, manager or other person in control with a written warning. Thereafter, the owner operator, manager or other person in control shall be subject to the penalties set forth in KMC 12.40.07. The written warning required by this subsection does not apply in the care of an individual person who unlawfully smoke in violation of KMC 12.40.070(b). Ordinance No. 2390 -2009 unlegislative format informational draft Page 4 of 5 (c) Notwithstanding the availability of any other remedy provided by the provisions of this Chapter, the City Manager or any person aggrieved by the failure of the owner, operator, manager or other person in control of any area where smoking is prohibited to comply with the provisions of this Chapter may apply for injunctive relief to enforce these provisions in any court of competent jurisdiction. 12.40.090 Other applicable laws. This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws or regulation. Where state law and the provisions of this chapter apply to the same area or activities, the more stringent provision creating a smoking prohibition shall apply. 12.40.100 Liberal Construction. This Chapter shall be liberally construed so as to further its purposes. Ordinance No. 2390 -2009 unlegislative'format informational draft Page 5 of 5 KENAI CITY COUNCIL MEETING MARCH 4, 2009 PAGE 12 H -1. Ratification of Bills MOTION: Council Member Molloy MOVED to ratify the bills and requested UNANIMOUS CONSENT. Council Member Eldridge SECONDED the motion. VOTE: There were no objections. SO ORDERED. Approval of Purchase Orders Exceeding $15,000 MOTION: Council Member Eldridge MOVED to approve the revised list of purchase orders exceeding $15,000. Council Member Moore SECONDED the motion and requested UNANIMOUS CONSENT. VOTE: There were no objections. SO ORDERED. H -3. Introduced by approval of the consent agenda. Ordinance No. 2390 -2009 Amending Kenai Municipal Code Chapter 12.40 to Eliminate Secondhand Tobacco Smoke Exposure in Places of Employment and Other Public Places. Introduced by approval of the consent agenda. Ordinance No. 2391 -2009 Amending KMC 14.20.240(c)(6) to Allow an Extension for the Ninety (90) Day Time Limit for Skirting in Mobile Homes Placed in Mobile Home Parks. 11-5. Ordinance No. 2392 -2009 Amending KMC 21.05.085, Airport Fuel Flowage Fee. Introduced by approval of the consent agenda. H -6. Approval Extension of Homer Electric Association, Inc. Lease /Alaska Fire Training Center 459 Marathon Road, Kenai. MOTION: KENAI CITY COUNCIL MEETING MARCH 4, 2009 PAGE 3 ITEM E: PUBLIC HEARINGS (Testimony limited to 3 minutes per speaker.) H -3. Ordinance No. 2390 -2009 Amending Kenai Municipal Code Chapter 12.40 to Eliminate Secondhand Tobacco Smoke Exposure in Places of Employment and Other Public Places. Item removed from consent agenda and moved forward for public hearing. MOTION TO INTRODUCE: Council Member Smalley MOVED to introduce Ordinance No. 2390 -2009 and Council Member Eldridge SECONDED the motion. The floor was opened for public hearing. Pamela Howard, 48966 Minnick, Soldotna Stated her support for the ordinance. Patrick A. Hawkins, 36115 Pioneer Drive, Soldotna Stated he was representing the VFW, spoke in opposition to the ordinance, and felt it was a borough -wide issue. Gary Superman, P.O. Box 8425, Nikiski Stated he was representing the Kenai Peninsula Borough CHARR as its president and spoke in opposition to the ordinance. Paul Morrison, 850 Auk, Apt. 2, Kenai Spoke in opposition to the ordinance. Levi Superman, 51661, Nikiski Spoke in opposition to the ordinance. Bill Osborn, 423 Rogers Road, Kenai Spoke in support of the ordinance. Chrystal Schoenrock, 55335 Bell Avenue, Box 8583, Nikiski Spoke in opposition to the ordinance. Joe Stanford, 46875 S. Miller Loop Road, Kenai Spoke in opposition to the ordinance. Grace Olendorff, 37555 Stone Hollow Drive, Soldotna Spoke in support of the ordinance. Cindy Stonecypher, 47117 Lexington, Kenai Spoke in opposition to the ordinance. Emily Nenon, American Cancer Society Spoke in support of the ordinance and offered assistance to the council. Jenny Olendorff, 37555 Stone Hollow Drive, Soldotna Spoke in support of the ordinance. KENAI CITY COUNCIL MEETING MARCH 4, 2009 PAGE 4 Mike Henry, 10800 Kenai Spur Highway, Kenai Spoke in opposition to the ordinance. Margaret Gilman, 216 Susieanna Lane, Kenai Spoke in support of the ordinance. Ramon Barrett, 53220 Jahwa Lane, Kenai Spoke in opposition to the ordinance. BREAK TAKEN: 8:24 P.M. BACK TO ORDER: 8:27 P.M. Aaron Parker, P.O. Box 1337, Sterling Spoke in support of the ordinance. Don Pearce, 155 Richfield Drive, Kenai Spoke in opposition to the ordinance. John C. Parker, 908 Highland Avenue, Kenai Spoke in support of the ordinance. Teresa Hanson, 45055 Holt Lamplight Road, Kenai Spoke in opposition to the ordinance. Blaine Gilman, 216 Susieanna Lane, Kenai Spoke in support of the ordinance. Kate Shultz, Cherry Circle, Soldotna Spoke in support of the ordinance. There being no one else wishing to speak, the public hearing was closed. Council discussion followed with comments including: Request for the city attorney to research the concerns spoken related to rights and civil liberties. Concern the ordinance was too broad, trying to protect adults from their own actions, and felt the current ordinance could be amended. Support for a work session to further review and discuss the ordinance. Support for a work session to review the current ordinance and develop amendments to it. Support of a work session after the introduction of Ordinance No. 2390- 2009. Support of the ordinance and the concept that it would protect the rights of people. Agreed the ordinance was too broad and supported amending the existing ordinance. To be effective, felt there should be a borough -wide ordinance. Supported encouraging the Kenai Peninsula Borough Assembly to present it as a borough -wide ballot issue. Eldridge No Ross No Molloy Yes Boyle Yes Porter No Smalley Yes Moore No Eldridge No Ross No Molloy Yes Boyle Yes Porter No Smalley Yes Moore No KENAI CITY COUNCIL MEETING MARCH 4, 2009 PAGE 5 MOTION TO TABLE: Council Member Smalley MOVED to table Ordinance No. 2390 -2009 and have it be part of a work session. Council Member Boyle SECONDED the motion. VOTE ON MOTION TO TABLE: *Student Representative Johnson: Ye MOTION FAILED. VOTE ON INTRODUCTION: *Student Representative Johnson: Yes MOTION FAILED. A work session on the current ordinance was scheduled for May 28, 2009, to be held in the council chambers and begin at 6:00 p.m. E -1. Ordinance No. 2382 -2009 Increasing Estimated Revenues and Appropriations by $5,200 in the General Fund for a Library Grant. MOTION: Council Member Eldridge MOVED for adoption of Ordinance No. 2382 -2009 and Council member Moore SECONDED the motion. The floor was opened for public hearing. Bob Peters, Old Town, Kenai Spoke in support of the ordinance. There being no one else wishing to speak, the public hearing was closed. There were no council comments. VOTE: Carol Freas From: Carol Freas Sent: Friday, May 08, 2009 10:43 AM To: den ise. reece ©pen insu laclarion. com Subject: May 26, 2009 Kenai Council Work Session Ad Attachments: Work Session Form for Paper1.doc One more ad!!!! Please publish the attached notice for the May 26, 2009 Kenai council work session on Friday, May 22, 2009. If you have questions /problems, please contact me at 283 -8231. I think I'm done with ads for today take a rest! Carol PUBLIC NOTICE The Kenai City Council will hold a work session on Tuesday, May 26, 2009. The topic of discussion will be possible amendments to KMC 12.40 entitled, "Regulation of Smoking in Eating Establishments and Bowling Alleys" The work session will be held in the Kenai City Council Chambers located at 210 Fidalgo Avenue, Kenai and begin at 6:00 p.m. The work session is open to the public. Contact the Kenai City Clerk's office at 210 Fidalgo Avenue, Kenai, 283 -7535, extension 231 with questions. Carol L. Frees, City Clerk D/ Publish: 5/22/09