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HomeMy WebLinkAboutOrdinance No. 2415-2009the eh or KENA ALASKA CITY OF KENAI ORDINANCE NO. 2415 -2009 Suggested by: Councilmember Ross AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING THE REGULATION OF SMOKING IN KMC 12.40 BY INCLUDING DEFINITIONS FOR "BUSINESSES" AND "HEALTH CARE FACILITIES BY PERMITTING BUSINESSES TO POST AND MAINTAIN THEIR PREMISES AS NON SMOKING ESTABLISHMENTS; PROHIBITING SMOKING IN HEALTH CARE FACILITIES AND REQUIRING HEALTH CARE FACILITIES TO HAVE A SMOKE -FREE BUFFER IN ENTRYWAYS; PROHIBITING SMOKING AT POSTED OUTDOOR EVENTS; AND, PROHIBITING SMOKING WITHIN A REASONABLE DISTANCE FROM OUTSIDE AREAS WHERE SMOKING IS PROHIBITED. WHEREAS, the City of Kenai Zoning Code has regulations regarding smoking in KMC 12.40; and, WHEREAS, KMC 12.40.010 includes definitions but does not define "business and "health care facilities and, WHEREAS, KMC 12.40.020 does not set forth a manner in which a business may elect to declare and post their establishment as "non- smoking and, WHEREAS, KMC 12.40.020 does not regulate smoking within and surrounding the entrances and exits of a health care facility; and, WHEREAS, KMC 12.40.020 does not regulate smoking at posted outdoor events; and WHEREAS, KMC 12.40 does not address smoke entering from entrances outside of enclosed non smoking areas and provide for reasonable distances where smoking is prohibited. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that Kenai Municipal Code 12.40 is hereby amended as shown on Attachment "A." PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 17th day of June, 2009. ATTEST: Carol L. Freas, ity Clerk PAT PORTER, MAYOR New Text Underlined [DELETED TEXT BRACKETED] Introduced: June 3, 2009 Adopted: June 17, 2009 Effective: July, 17, 2009 Ordinance No. 2415 -2009 Attachment "A" Chapter 12.40 REGULATION OF SMOKING [IN EATING ESTABLISHMENTS AND BOWLING ALLEYS] Sections: 12.40.010 Definitions. 12.40.020 Regulation of smoking [IN EATING ESTABLISHMENTS AND BOWLING ALLEYS]. 12.40.025 Reasonable Distance. 12.40.030 Where smoking not regulated. 12.40.040 Sign posting requirement. 12.40.050 No retaliation. 12.40.060 Violations and penalties. 12.40.070 Enforcement. 12.40.080 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 passageway, ventilation system or other means. A "bar" does not include areas in an eating establishment where alcoholic beverages may be served. "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. "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 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. "Health care facility" means a business office or institution that provides medical or mental health treatment "Operator" means and includes the owner, proprietor, manager, lessee, lessor, licensee or any other person exercising control over any eating establishment, business 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. Ordinance No. 2415 -2009 Attachment "A" 12.40.020 Regulation of smoking FIN EATING ESTABLISHMENTS AND BOWLING ALLEYS] Smoking is prohibited and is unlawful: (a) Within all indoor eating establishments and bowling alleys. (b) Within a business which is posted no- smoking in the manner set forth in KMC 12.40.040. (c) Within a health care facility or twenty (20') feet from any entrance or exit to a health care facility. (d) Within the are of an outdoor event which is clearly and conspicuously posted with "no smoking" signs or the international "no smokin s mbol consistin• of a .ictorial representation of a cigarette enclosed in a red circle with a red bar across it. 12.40.025 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 place where smoking is prohibited. Unless otherwise stated under this Chapter, the minimum reasonable distance is twe 20, feet. 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 (unless declared non smoking by owner or operator): (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. 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. (c) An operator of any business, not including eating establishments and bowling alleys, may elect to prohibit smoking in their business by posting signs under 12.40.040 (a) and (b) above. 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. 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. Ordinance No. 2415 -2009 Attachment "A" (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 (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 first violation. (d) Each and every day that such violation continues shall be deemed a separate and distinct violation. (e) 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. 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 he subject to the penalties set forth in Section 12.40.060. 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.