ARTICLE 8

ARTICLE 8. SMOKING IN PUBLIC PLACES

9-801 LEGISLATIVE INTENT.

(A) It is the policy of the City in furtherance of its responsibility to protect the public health, safety and welfare;

(1) To prohibit the smoking of tobacco products in public places, except in designated smoking areas;

(2) To regulate the smoking of tobacco products in places of employment; and

(3) To strike a reasonable balance between the needs of smokers and the need of nonsmokers to breathe smoke-free air, recognizing that, where these needs conflict, the need to breathe smoke-free air shall have priority.

(B) F urthermore, it is the intent of this Article to effectuate these policies by providing for:

(1) A program of effective regulation of the use of tobacco products for the protection of the public health, safety and welfare;

(2) A program to promote the public education as to the health hazards and other ill effects of breathing second-hand smoke; and

(3) A program to establish procedures for the assumption and performance of certain regulatory and enforcement responsibilities with respect to the smoking of tobacco products. (Ord. 5757, Sec.1)

9-802 DEFINITIONS.

As used in this Article, the following terms shall have the meanings indicated:

(A) Bar means an area which is devoted to the serving of alcoholic beverages and in which the serving of food is incidental to the consumption of such beverages.

(B) Business means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

(D) Employee means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.

(E) Employer means any person, partnership, corporation, or nonprofit entity, including a municipal corporation, who employs the services of one or more persons.

(F) Enclosed means closed in by a roof and four walls with appropriate openings for ingress and egress.

(G) Nonprofit Entity means any corporation, unincorporated association, or other entity created for charitable, educational, political, social, or other similar purposes, the net proceeds from the operations of which are committed to the promoting of the objects or purposes of the organization and not to private financial gain. A public agency is not a nonprofit entity within the meaning of this Section.

(H) Place of Employment means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and class rooms, cafeterias and hallways. Except:

(1) A private residence is not a place of employment unless it is used as a child care or health care facility.

(2) The dining area of a restaurant is not a place of employment.

(I) Public Place means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, and waiting rooms.

(J) Restaurant means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization or club, which gives or offers food for sale to the public, guests, patrons, or employees, except that the term restaurant shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a bar as defined above.

(K) Retail Tobacco Store means a retail store utilized primarily for the sale of tobacco products and accessories.

(L) Service Line means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

(M) Smoke or Smoking means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe or weed.

(N) Sports Arena means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events. (Ord. 5757, Sec. 2)

9-803 PROHIBITED PUBLIC SMOKING AREAS AND PLACES.

(A) No person shall smoke in a public place or at a public meeting except as permitted in this Article. The following listed areas are declared to be public areas; provided, however, the enumerated areas are not to be construed as an exclusive enumeration of the only public areas covered:

(1) Elevators and restrooms.

(2) Buses, ticket, boarding, and waiting areas of public transit depots; provided, however, that this prohibition does not prevent:

(A) The establishment of separate waiting areas for smokers and nonsmokers, or

(B) The establishment of a maximum of fifty percent (50%) of a given waiting room as a smoking area.

(3) Service lines.

(4) Retail stores, except areas in the stores not open to the public and all areas within retail tobacco stores.

(5) Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the purpose of serving food and drink, restrooms and offices, and areas thereof not open to the public, which are otherwise regulated by this Article.

(6) All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to offices, banks, hotels, and motels.

(7) Restaurants and private clubs, except that those regularly serving food with a seating capacity of thirty (30) or more shall provide a nonsmoking area of sufficient size with contiguous seating to accommodate patrons who request to be seated in such an area. These establishments may also elect to use physical barriers and/or ventilation to help insure smoke-free air.

(8) Public areas of libraries and museums when open to the public; provided, however, that this prohibition does not prevent the designation of separate smoking areas.

(9) Any building not open to the sky which is used primarily for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production; provided, however, that this prohibition does not prevent the designation of a contiguous area containing a maximum of fifty percent (50%) of a lobby as a smoking area.

(10) Enclosed sports arenas and convention halls, except in designated smoking areas, which cannot include designating the entire area as smoking.

(11) Every room, chamber, and place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, or agencies of the City or any political subdivision of the State of Kansas during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City.

(12) Lobbies, hallways, wards, and semiprivate rooms of health facilities, including but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices and dentists' offices. In bed space areas of health facilities, used for two (2) or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing to be placed in a room where smoking is permitted.

(13) Polling places.

(B) Notwithstanding any other provision of this Section, any owner, operator, manager, or other person who controls any establishment described herein may declare that entire establishment as a nonsmoking establishment. (Ord. 5757, Sec. 3)

9-804 PERMITTED PUBLIC SMOKING AREAS.

(A) Smoking may be permitted in the following public places:

(1) Bars or taverns.

(2) Fully enclosed rooms occupied exclusively by smokers, even though the rooms may be visited by nonsmokers.

(3) Rooms and halls being used by a person or group for a social or business function where the seating arrangements are under the control of the sponsor of the function.

(4) Retail business primarily engaged in the sale of tobacco or tobacco products.

(5) Any public place five hundred (500) square feet or less in size.

(6) Restaurants with a seating capacity of thirty (30) or fewer persons.

(7) Smoking areas designated by the proprietor or person in charge of a public place or public meeting pursuant to this Article.

(8) Private residences, except when used as a child care or health care facility.

(9) Restaurant, hotel, and motel conference or meeting rooms, and public and private assembly rooms while these places are being used for private functions.

(10) Bowling centers. During league play, a league may determine a smoking policy for the league. During open play, if a nonsmoker requests a lane they shall be provided with a lane, if available, where there is no smoking. If there is a request for more than one (1) nonsmoking lane, whenever possible, the owner or manager on duty shall select bowling lanes that are contiguous with and adjacent to another nonsmoking lane.

(11) Hotel and motel rooms. Owners or managers of hotels and motels are urged to designate up to fifty percent (50%) of their rooms as no smoking areas.

(B) Notwithstanding any other provision of this Section, any owner, operator, manager or other person who controls any establishment described in this Section may declare that entire establishment as a nonsmoking establishment. (Ord. 5757, Sec. 4)

9-805 DESIGNATION OF NON-SMOKING AREAS IN PLACES OF EMPLOYMENT.

(A) It shall be the responsibility of employers to provide smoke-free areas.

(1) No person shall smoke in any work area in places of employment, except that any employer may designate as much as fifty percent (50%) of the total contiguous work area as a smoking area.

(2) Smoking is prohibited in auditoriums, classrooms, conference and meeting rooms, elevators, medical facilities and restrooms.

(3) If an employer designates a smoking area in his or her work area pursuant to this Section and if a dispute arises concerning the designation of a smoking area, in determining the dispute, the employer shall consider the following factors:

(a) Health impact on nonsmokers;

(b) Square footage of the work area;

(d) Existing physical barriers;

(e) Office traffic patterns;

(f) Availability of fully enclosed rooms for use by smokers; and

(g) Any other relevant factors.

(B) Notwithstanding any of the provisions of this Section, every employer shall have the right to designate any place of employment, or any portion thereof as a nonsmoking area.

(C) I n no event shall restrooms, lobbies, hallways or other common areas typically shared by smokers and nonsmokers be designated as smoking areas, except that lobbies, hallways or other common areas which exceed 1,300 square feet in area may have within them designated smoking areas provided that no more than twenty-five percent (25%) of the total areas of such lobby, hallway or common areas is so designated and further providing that such designated areas are located such that it is not necessary for nonsmokers to pass through such areas to reach other nonsmoking areas.

(D) Employers may request a special permit exempting a public place or business from the provisions herein, upon a showing by the applicant that the public place or business has implemented a satisfactory smoking policy.

(E) If denied by the enforcing officer, the employer may request a review by the City Commission which may issue the special permit. (Ord. 5757, Sec. 5)

9-806 SIGNS.

To advise persons of the existence of "No Smoking" or "Smoking Permitted" areas, signs shall be posted as follows:

(A) In public places where the proprietor or person in charge prohibits smoking in the entire establishment, the international no smoking symbol shall be conspicuously posted either on all public entrances or in a position clearly visible on entry into the establishment.

(B) In public places where certain areas are designated as no smoking or smoking permitted areas pursuant to this Article, the international no smoking symbol shall be conspicuously posted and clearly visible in the nonsmoking areas and the international smoking symbol shall be conspicuously posted and clearly visible in the smoking areas.

(C) In public places where smoking is permitted in the entire establishment, the international smoking symbol shall be conspicuously posted either on all public entrances or in a position clearly visible on entry into the establishment.

(D) Every restaurant, except those with less than thirty (30) seating capacity, shall have posted at every public entrance a conspicuous sign clearly stating that a nonsmoking section is available. Every patron shall be asked as to his or her preference by the host or hostess (if one is on duty). A person taking reservations for a restaurant shall likewise ask if there is a nonsmoking or smoking preference.

(E) In work areas where an area or areas are designated as no smoking or smoking permitted areas, the international no smoking symbol shall be conspicuously posted and clearly visible in the nonsmoking areas and the international smoking symbol shall be conspicuously posted and clearly visible in the smoking areas. (Ord. 5757, Sec. 6)

9-807 AREAS WHERE SMOKING IS PROHIBITED.

Smoking shall not be permitted and smoking areas shall not be designated in those areas where smoking is prohibited by the Fire Chief, State Statute, ordinances or regulations of the City of Lawrence or other applicable laws. (Ord. 5757, Sec. 7)

9-808 RESPONSIBILITY TO PROPRIETORS.

The proprietor or person in charge of a public place or public meeting shall make reasonable efforts to obtain compliance with this Article in such places by:

(A) Posting appropriate signs.

(B) Arranging seating and work areas to provide a smoke free area.

(D) Affirmatively directing smokers to designated smoking areas.

(E) Using existing physical barriers and ventilation systems to minimize the toxic effect of transient smoke in adjacent no-smoking areas. (Ord. 5757, Sec. 8)

9-809 PURCHASE OF TOBACCO PRODUCTS, PERSON UNDER AGE 18.

It shall be unlawful for any person under the age of 18 to purchase any tobacco product in any form. (Ord. 5757, Sec. 9)

9-810 SALE OF TOBACCO PRODUCTS, PERSONS UNDER AGE 18.

It shall be unlawful for any person to sell any tobacco product in any form to any person under the age of 18. (Ord. 5757, Sec. 10)

9-811 ENFORCEMENT.

(A) The Fire Chief or his or her designated agent shall be responsible for carrying out the purposes and intent of this Article and enforcing its provisions within the City.

(B) The Fire Chief or his or her designated agent may fix, charge and collect reasonable fees, not to exceed $25, for investigating a request for exemption from the provisions of this Article. After investigation, the Fire Chief or his or her designated agent shall make a finding on the significant risks, if any, to the health, safety and welfare of the public if the exemption was granted. The Fire Chief or his or her designated agent shall forward a summary of the investigation and findings to the City Commission.

(C) The City Commission, after reviewing the Fire Chief's or his or her designated agent's investigation and findings, may grant or deny the request for exemption. The period of exemption shall be two (2) years. The Governing Body may review an exemption if changes in the exempted public place or business cause the exemption to create a significant risk to the health, safety and welfare of the public. The Fire Chief or his or her designated agent may fix, charge and collect reasonable fees, not to exceed $25, for an exemption.

(D) An exemption may be renewed. A renewal request shall follow the procedures and requirements of an initial exemption request as detailed above. The Fire Chief or his or her designated agent may fix, charge and collect a reasonable fee, not to exceed $25, for renewal of an exemption. (Ord. 5757, Sec. 11)

9-812 PENALTY.

Any person, business, employer or employee who violates any of the provisions of this Article shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined a sum of $25. Each and every day that such violation continues shall constitute a separate offense. (Ord. 5757, Sec. 12)

9-813 NON-RETALIATION.

No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this Article. (Ord. 5757, Sec. 13)

9-814 SEVERABILITY.

If any section, subsection, paragraph, sentence, clause or phrase in this Article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Article or any part thereof. (Ord. 5757, Sec. 14)