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HomeMy WebLinkAboutOrdinance No. 2390-2009<, rrir,\ i the ~~ty °f CI'fB OF KENAI ORDINANCE NO. 234®-8009 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. PAT PORTER, MAYOR ATTEST: Carol L. Freas, City Clerk Introduced: March 4, 2009 Adopted: March 18, 2009 Effective: April 18, 2009 Anew Text Underlined; [DELETED TEXT E3RACKETED] Chapter 12.40 [REGULATION OF SMOKING IN EATING ESTABLISHIVIENTS AND BOWLING ALLEYS] SMOKING IN PLACES OF EMPLOYMENT AND PUBLIC PLACES 12.40.010 Defmitions. 12.40.020 [REGULATIONS OF SMOKING IN EATING ESTABLISHMENTS AND BOWLING ALLEYS.] Smoking arohibited. 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 ri¢hts. 12.40.0[6]70 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 Defmitions. [`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 ACCOiVIPANIED 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 ESTABI:dSHMENT WHERE ALCOHOLIC BEVERAGES MAY BE SERVED. "EATING ESTABLISHIv1ENT" MEANS ANY RESTAURANT, COFFEE SHOP, CAFETERIA, UJNCFIEONETTE, 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 WHICI-I IS TO GIVE OR OFFER FOR SALE FOOD TO THB PUBLIC AND WHERE COOKED OR OTHERWISE PREPARED FOOD IS SOLD TO THE PUBLIC FOR CONSUMPTION ON THB 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 SIDES BY SOLID WALLS OR WINDOWS, EXCLUSIVE OF DOORS OR PASSAGE WAYS, WHICH EXTEND FROM THE FLOOR TO THE CEILING, I'SCLUDING 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 WHEI~iEVER 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 "SMOKING" MEANS T'HE BURNING, INHALING OR EXHALING OF A TOBACCO OR CARRYING ANY LIGHTED PIPE, CIGAR, CIGARETTE OR OTHER COMBiISTIBLE SUBSTANCE IN ANY MANNER OR IN ANY FORM.] "Business" means au~le ag t entity, whether for profit or not-for-profit, that provides goods or services including, but not limited to, a sole pro rietorship, partnership. limited liability company, corporation, trust, membership or¢anization or similar entity. `Bm~Ioyee" means andperson 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 permanentlyand directly open to the outdoors. "Health care facility" means a business, office or institution that prodtdes care or treatment of diseases or disability, whether physical, mental or emotional. "Place of em~yment" meatus 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 exceRt during the time when used as a child care, adult care or health care faciPi on a Pee for service basis. "Public place" means airy 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 uP bltc• "Smokin¢" means inhaling, exhaling, burnin og r carrying anV lighted or heated tobacco product or other plant material intended for inhalation. 12.40.020 [REGULATION OF SMOKING IN EATLNG ESTABLISH'VIENTS AND BOWLING ALLEYS.] Smoking_prohibited. [SMOKING IS PROHIBITED AND IS UNLAWFUL WITHIN ALL INDOOR EATING ESTABLISHMENTS AND BOWLING ALLEYS.] ~ Smoking is prohibited at the following Ip aces: Al] enclosed public places within the City of Kenai. All enclosed areas that are places of em~loyment. No. 2390-2009 ATTACHMENT "A" Page 2 aF6 All enclosed areas on properties. including buildings or vehicles, owned or cont~•olled by the City of Kenai, and includuia every room, chamber, place of meeting or public assembly under the control of the City of Kenai. 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. All areas within ffty_(50) feet of each entrance to a hospital or medical clinic. All outdoor arenas, stadiums. amphiTheaters and public transit waiting, areas except in desi Hated smoking areas, which may be established only in perimeter areas at (east twenty (20) feet from bleachers erandstands, seating areas and concession stands. All areas within twenty (201 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 oil the premises includes an entrance to an outdoor area such as a patio or deck, the_mini~num reasonable distance under KMC 12.40.030 shall be Yen (10) feet. "Reasonable Distance" areas as defined by KMC 12,A0.030. ~b Smoking is prohibited on an~properiy 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 smokin.~. ~ 1"his Chapter shall not be interpreted or construed to re Mate 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 smoldne is prohibited by this Chanter through entrances, windows, veptilation systems or any other means, smolcina shall occur only at a reasonable distance outside any enclosed public place or dace of em l~oyment where smokine is prohibited. Unless otherwise stated under this Chapter, the minimum reasonable distance is twen 20 feet. 12.40.0[340 Where smoking not [REGULATED] prohibited. [NOTWITHS'T'ANDING ANY OTHER PROVISION OF THIS CHAPTER, THE FOLLOWING AREAS SHALL NOT BE SUBJECT TO THE SMOIQNG RESTRICTION'S OF THIS CHAPTER: (A) BARS; AND (F3) EATING ESTABLISHMENTS WHILE IN USE IN THEIR ENTIRETY FOR PRIVATE PTJNCTIONS; AND (C) ANY PATIO OR OTHER AREA OF AN EATING ESTABLISHMENT WHICH IS ENTIRELY OPEN TO THE SKY.] Ordinance No. 2390-2009 ATTACHMENT "A" Page 3 of 6 ~ Smokin r is not prohibited in the followiue places: Up to a maximum of twen . -five percent 25 °/oZpercent of hotel and motel slee iu ]l¢ rooms rented to guests may be designated as smoking rooms if the hotel or motel desi gig tes 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 nonsmokin rg ooms. Outdoor areas of places of employment except the outdoor areas identified under KMC 12.40.020. 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 afee-for-service basis shall disclose to parents or euardians of children cared for on the premises if the prourietor permits Smokin¢ outside of the hours when child care is provided. Disclosure shall include posting on The premises a conspicuous written notice and orally infonnin~parents or euardians. 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 SMOHING," WITH LETTERS OF NOT LESS THAN TWO (2) INCHES IN HEIGHT OR THE II~TTERNATIONAL "NU SMOKING" SYMBOL (CONSISTING OF A PICTORIAL REPRESEN'T'ATION OF A BURNING CIGARETTE ENCLOSED N A RED CIRCLE WITH A RED BAR ACROSS IT), AND WITH LETTERS OF NOT LESS THAN ONE (1) INCH IN HEIGHT, CITING CITY OP KENAI MUNICIPAL CODE CHAPTER 12.40. SIGNS SHALL BE CLEARLY, SLFFICIENTLY AND CONSPTCUOCSLY POSTED LN 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 EATLtiG ESTABLISHMENT OR BOWLING A1,LEY A SIGN CLEARLY STATING "NO SMOKING," WHICH MEETS THE ABOVE DESCRIBED REQUIREMENTS.] ~ The owner operator, manager or other person in control of a public place or place of em~lo where smoking is prohibited by this Chapter shall clearlyand conspicuouslylace at every entrance `~Vo Smoking" siea~s or the international "No Smoking" symbol (consisting of a pictorial representation of a burnin_ cigarette enclosed hi a red circle with a red bar across it). The owner, operator, manager or other person in control of every hospital and medical clinic to which this Chapter applies shall post at every enhance a conspicuous si ng clearly stating that smokine~ is prohibited within fifth 50) feet of the entrance to the buildnrg and within the huildintr. Ordinance No. 2390-2009 ATTACHMENT "A" Page A of 6 (~ Emslovers shall provide asmoke-free workplace, and neither an employey r nor a person havine legal control of the premises mawpermit an employee, customer or other_person,to smoke inside enclosed areas subject to the requirements of this Chapter. The owner, operator, manager or other person in control of a of an~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. ~ ff an owner, operator. manager or other person in control of any area where smokin~is prohibited observes a person smoking in violation of this Chapter, he or she shall direct the person to stop smokine. If the person does not stogysmoking, 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, n ep rator, 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.] ~ No person or employer shall discharge, refuse to hire, or in any other manner retaliate or discriminate against an~m~lo~, applicvit for employment, or other individual because such em~to}_ee, ~~licant for em~yment or individual reports a violation or otherwise insists upon compliance with anS' requirement of this Chapter. An emnloyee who works in a setting where an employer allows smoking does not waive or otherwise surrender anVlegal rights the emplo e~y have against the employer or any other party. (~ 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[(]70 Violations and penalties. (a) It is unlawful for any owner, operator, manager or other person in control of any area where smokin is rohibited [PERSON WHO OPERATES ANY PREMISES SUBJECT TO REGULATION] under this ([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]hapter. (c) Any person wlto violates any provision of this chapter shall be guilty of a violation [AN INFRACTION], punishable hy: (1) A fine not exceeding one hundred dollars ($100.00), plus any surcharge required to be imposed by AS 12.55.039, 'fora [FIRST] violation [WITHIN ATWENTY-ROUR (24) MONTH PERIOD]; Ordinance No. 2390-2009 A7`TACf3MENT "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 atwenty-Four (24) month period as measured feom the date of [FIRST] the most recent prior violation; or (3) A Fine not exceeding five Imndred dollars ($500.00), plus any smnharge required to be imposed by AS 12.55.039, for a third or additional violations within atwenty--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 THB CITY] may bring a civil action against a person who violates Yhis 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 T'HE CASE OF TF~ FIRST VIOLATION OF THIS CHAPTER IN ANY TWO-YEAR PERIOD, THE OPERATOR SFIALL 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 confrol with a written warnine. Thereafter. the owner operator manager or other person in control shall be subject to the penalties set forth in KNIC 72.40.07. The written warning remairod by this subsection does not apply in the Dare of an individual person who unlawfully smoke in violation of KMC 12.40.070(b). ~ Notwithstanding the availability of another remedy provided b~provisions of this Chapter, the City Manager or andperson aggrieved by the failure of the owner, operator. manager or other person in control of an~rea where smoking 1S prohibited to comply with the provisions of this Chapter may apply for injunctive relief to enforce these provisions in any court of competent~nrisdietion 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 rest<•icted 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 ur oses. Ordinance No. 2390-2009 AT'CACIIMENT "A" Page 6 of 6 Chapter 12.40 SMOKING IN PLACES O,F EMPLOYMEi~'T AR'D 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 laws. 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 lea ~ fifty percent (50%) of the combined surface of the area's vertical places is permanenfly and directly open to the outdoors. "Health care facility" means a business, office or institution that provides care or b~eatment 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 aoaessible to the general public. "Smoking" means inhaling, exhaling, burning or carrying airy lighted or heated tobacco product or other plant material intended for inhalation. Ordinance No. 2390-200' unlegislarive format informational draft Page I of 5 12.40.020 Smoking prohibited. (a) Smoking is prohibited at the following places: (1) All enclosed public places within the City of Keuai. (2) All enclosed areas Yhat are places of employment. (3) All enclosed areas on properties, including buildings or vehicles, owned or controlled by the City of Keuai, and including every room, chamber, place aPmeeting 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) 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 tinder 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 govermnent. 12.40.030 Reasonable distance. To ensure that smoke does not entee 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 wider this Chapter, the minimum reasonable distance is Twenty (20) feet. 12.40.040 Where smoking not prohibited. Ordinance No. 2390-2009 untegjslative format informational drafr Page 2 of 5 (a) Smoking is not prohibited in the following places: (1) Up to a maximum of twenty-flue percent (25 %) percent of hotel and motel sleeping rooms rented too gists 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 identif ed under ICMC 12.40.020. (3) Private residences, except during the time when used as a child care, adult care, or health care facility on afee-for-service basis. Individuals providing child care in a private residence on afee-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 flee 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 plane or place of employment where smoking is prohibited by this Chapter shall clearly and conspicuously place at every entrance "No Smokhng" 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 prohibitul within 'Fift'y (50) feet of the entrance to the building and within the building. (c) Employers shall provide asmoke-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 v~y area where smoking is prohibited by this Chapter shall remove all ashh'ays from the area, except those ashtrays for sale and not intended 'foe 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 aeea shall ask the person to ]cave 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 unlegislafive format informational draft Page 3 of 5 12.40.060 No retaliation nor waiver of rights. ja) 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 aviolation 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 pa~2y. (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. 72.40.070 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 hwidred dollars ($100.00), plus any surcharge required to be imposed by AS ]2.55.039, 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 atwenty-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 atwenty-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 violaton 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 maybe 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 confrol with a written warning. Thereafter, the owner operator, manager or other person in control shall be subject to the penahies 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 unlegistaHve format informational draft Page A of 5 (c) Notwithstanding the availability of any other remedy provided by the provisions of this Chapter, flee City Manager or any person aggrieved by the failare 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 tin 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. ] 2.40.100 Liberal Construction. This Chapter shall he liberally construed so as to further its purposes. Ordinance No. 2390-2009 unlegislative format informafional draft Page 5