ARTICLE II SMOKING [1]

[1]

Editor's note–Section 1 of Ordinance 06-11-118, adopted Nov. 7, 2006, renamed Art. II, Smoking in Public Places, to read as herein set out.

Former division 3, §§ 54-41–54-46 pertaining to electronic cigarettes and/or liquid nicotine and deriving from Ordinance 14-02-08, sec. 3, adopted 2/18/14, was repealed and deleted in its entirety by Ordinance 2024-08-35 adopted 8/20/2024.

DIVISION 1 GENERALLY [1]

[1]

Editor's note-Ordinance 10-07-33, sec. 3, adopted July 29, 2010, enacted provisions codified as Art. II, Div. 2. To facilitate indexing, secs. 54-19-54-27 have been classified as Art. II, Div. 1.

§ 54-19 Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Building official.

The city's building official, or his designee, charged with, among other things, the duties of enforcing and administering this article.

Cigar.

Unless otherwise amended by the Texas Tax Code, chapter 155, a roll of fermented tobacco that is wrapped in tobacco and the main stream of smoke from which produces an alkaline reaction to litmus paper.

Cigarette.

Unless otherwise amended by the Texas Tax Code, Chapter 154, a roll for smoking that is:

(1)

Made of tobacco or tobacco mixed with another ingredient and wrapped or covered with a material other than tobacco; and

(2)

Not a cigar.

City.

The City of Frisco, Texas.

Electronic cigarette and/or e-cigarette.

Any electronic device composed of a mouthpiece, heating element, battery and electronic circuits that provides, or is manufactured or intended to provide, a vapor of liquid nicotine and/or other substances mixed with propylene glycol and/or other substances delivered or deliverable to the user that he/she can inhale in simulation of smoking. This term shall include every version and type of such devices whether they are manufactured or marketed as electronic cigarettes, e-cigarettes, electronic cigars, e-cigars, electronic pipes, e-pipes or under any other product name or description.

Employee.

Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any persons who volunteers his or her services for a nonprofit entity.

Employer.

Any person, partnership, entity, corporation, including a municipal corporation, or nonprofit entity, which employs the services of one or more individual persons or entities.

Fraternal organization member space.

An enclosed space used by a recreational, fraternal, social, patriotic, political, benevolent, or athletic organization exclusively for organizational purposes at all times, and not for pecuniary gain, and in which the sale of alcoholic beverages is merely incidental to the operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax under 26 U.S.C. section 501, as amended.

Food products establishment.

Any restaurant, coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment or any other eating establishment, organization, club, boardinghouse or guesthouse, which gives or offers for sale food to the public, guests, patrons or employees as well as kitchens in which food is prepared on the premises for serving elsewhere, including, but not limited to, catering facilities. Other food product establishments include, but are not limited to, grocery stores and food markets, not including those outdoors.

Illegal smoking material.

Any substance, however marketed, which can reasonably be converted for smoking purposes whether it is presented as incense, tobacco, herbs, spices or any blend thereof if it includes any of the following chemicals or a comparable chemical:

(1)

Salvia Divinorum or Salvinorin A; all parts of the plant presently classified botanically as Salvia Divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plant, its seeds or extracts;

(2)

2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl) phenol (also known as CP47,497) and homologues;

(3)

(6aS,10aS)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a, 7,10,10a-tetrahydrobenzo [c] chromen-1-ol (also known as HU-211 or Dexanabinol);

(4)

1-pentyl-3-(1-naphthoyl) indole (also known as JWH-018);

(5)

1-butyl-3-(1-naphthoyl) indole (also known as JWH-073); or

(6)

1-pentyl-3-(4-methoxynaphthoyl) indole (also known as JWH-081).

Products containing some or all of the above substances are currently being marketed under the following commercial names:

"K-2," "K-2 Summit," "K-2 Sex," "Genie," "Dascents," "Zohai," "Sage," "Spice," "KO Knock-out 2," "Spice Gold," "Spice Diamond," "Yucatan Fire," "Solar Flare," "Pep Spice," "Fire N' Ice," and "Salvia Divinorum."

Any product containing any of the chemical compounds set forth above shall be subject to the provisions of this article, regardless of whether they are marketed under alternative names.

Illegal smoking material paraphernalia.

Any paraphernalia, equipment or utensil that is used or intended to be used in ingesting or inhaling illegal smoking materials and may include, but is not limited to:

(1)

A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;

(2)

A water pipe;

(3)

A carburetion tube or device;

(4)

A smoking or carburetion mask;

A chamber pipe;

A carburetor pipe;

An electric pipe;

An air-driven pipe;

A chillum;

A bong; or

An ice pipe or chiller.

Liquid nicotine.

Any liquid product composed either in whole or in part of pure nicotine and propylene glycol and/or any other substance and manufactured for use with electronic cigarettes or e-cigarettes.

Open display unit.

In the context of the retail sale of electronic cigarettes or e-cigarettes and/or liquid nicotine, any device, furniture or furnishing within or upon which electronic cigarettes or e-cigarettes and/or liquid nicotine are displayed to customers, and includes, but is not limited to, any case, rack, shelf, counter, table, desk, kiosk, booth, stand, vending machine and other surface.

Person.

An individual, a group of two or more individuals, proprietorship, corporation, partnership, wholesaler, association or other legal entity, or any licensed or unlicensed business.

Physical barrier.

A barrier that will form an effective membrane continuous from outside wall to outside wall, from a smoke barrier to a smoke barrier, from floor to floor or roof above, or a combination thereof, including continuity through all concealed spaces, such as above suspended ceilings, interstitial structural and mechanical spaces. Transfer grilles, louvers and similar openings shall not be used in these partitions. Self-closing, tightfitting doors are permitted in such barriers. Membrane penetrations must be effectively sealed to prevent the free passage of air.

Place of business.

(1)

A commercial business location where cigarettes, tobacco products, electronic cigarettes or e-cigarettes and/or liquid nicotine is/are sold;

(2)

A commercial business location where cigarettes, tobacco products, electronic cigarettes or e-cigarettes and/or liquid nicotine are kept for sale of consumption or otherwise stored; or

(3)

A vehicle from which cigarettes, tobacco products, electronic cigarettes or e-cigarettes and/or liquid nicotine is/are sold.

Place of employment.

Any enclosed area under the control of 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 classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a licensed child care, adult day care or health care facility.

Possess(es), possessing or possession.

Actual care, custody, control or management.

Private club.

Any building, premises or portion thereof which is permitted by the state and allowed by special use permit by the city as a private club for the storing, possession and dispensing for on-premises consumption of alcoholic beverages. Private club does not include a premises operated by an organization which is not available to and not customarily used by the general public and entry and privileges thereto are established by regulations of that organization distinct from a Texas Alcohol and Beverage private club membership.

Public area.

Any enclosed, indoor area that is open to or is used by the general public and includes, but is not limited to, retail stores, grocery stores, offices, professional, commercial or financial establishments, restaurants, public and private institutions of education, health care facilities, nursing and convalescent homes, residential treatment facilities and buildings owned or occupied by political subdivisions.

Retail electronic cigarette store.

A retail store utilized solely for the sale and sampling of electronic cigarettes or e-cigarettes and/or liquid nicotine and related accessories.

Retail or service establishment.

Any establishment which sells goods or services to the general public.

Retail tobacco store.

A retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of the other products is merely incidental.

Retailer.

A person, place of business or retail and service establishment, who/which engages in the practice of selling cigarettes, tobacco products, electronic cigarettes or e-cigarettes and/or liquid nicotine to consumers and includes, without limitation, the owner of an open display unit.

Self-service merchandising.

In the context of the retail sale of electronic cigarettes or e-cigarettes and/or liquid nicotine, the open display, including, without limitation, the use of an open display unit of electronic cigarettes or e-cigarettes and/or liquid nicotine, whether packaged or otherwise, for direct retail customer access and handling prior to purchase without the intervention of assistance of the retailer or the retailer's owner, employee or agent.

Service line.

An indoor line or area where persons await service of any kind, regardless of whether or not such service involves the exchange of money. Such service shall include, but is not limited to, sales, giving of information, directions or advice and transfers of money or goods.

Smoke or smoking.

Includes the carrying, possessing or holding of a pipe, hookah, cigarette, tobacco product, tobacco substitute, electronic cigarette or e-cigarette or liquid nicotine of any kind which is burning or emitting a vapor.

Smokeless tobacco.

(1)

Chewing tobacco, including Cavendish, Twist, plug scrap and any kind of tobacco suitable for chewing;

(2)

Snuff or other preparations of pulverized tobacco;

(3)

An article or product that is made of tobacco or a tobacco substitute and that is not a cigarette or cigar; or

(4)

Weed or other plant product.

Smoking lounge.

A room common to, or within, a retail or service establishment that provides patrons an area for smoking. Other services not directly related to the activity of smoking may be provided by the establishment in a smoking lounge.

Smoking room.

A room within a retail tobacco store that provides patrons an area designated specifically for smoking products purchased on the premises or elsewhere. Other services not directly related to the activity of smoking shall not be offered in a smoking room.

Sports arena.

Sports stadiums, sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

Tobacco product.

(1)

Cigar;

(2)

Smoking tobacco, including granulated, plug-cut, crimp-cut, ready-rubbed, and any form of tobacco suitable for smoking in a pipe or as a cigarette;

(3)

Chewing tobacco, including Cavendish, Twist, plug scrap and any kind of tobacco suitable for chewing;

(4)

Snuff or other preparations of pulverized tobacco; or

(5)

An article or product that is made of tobacco or a tobacco substitute and that is not a cigarette or an e-cigarette as defined by section 161.081, Health and Safety Code.

Tobacco substitute.

An herbal-based non-tobacco product used for smoking.

Ventilation system.

A supply, return, ventilation and circulation system designed by a licensed professional engineer to meet the requirements of section 54-24 of this article, and meeting all the other requirements of the city's mechanical code, as amended.

(Ordinance 00-12-12, sec. 3, adopted 12/5/00; Ordinance 06-11-118, sec. 2, adopted 11/7/06; Ordinance 10-07-33, sec. 2, adopted 7/29/10; Ordinance 14-02-08, sec. 2, adopted 2/18/14; Ordinance 14-08-45, sec. 2, adopted 8/5/14; Ordinance 19-03-14 adopted 3/5/19; Ordinance 2024-08-35 adopted 8/20/2024)

§ 54-19.1 Purposes.

The purposes of this article are to protect the public's health by eliminating smoking in public places and the right of nonsmokers to breathe smoke-free air by prohibiting smoking in public places in the city, with certain exceptions, to reduce detrimental effects on not only smokers, but also others in close proximity to smokers and to further the health, safety and welfare of the city and its citizens.

(Ordinance 19-03-14 adopted 3/5/19)

§ 54-20 Smoking and smokeless tobacco prohibited.

(a)

Smoking prohibited in certain public areas.

(1)

A public or private preschool, primary or secondary school;

Elevators, museums, libraries, galleries, public transportation facilities open to the public and service lines of establishments doing business with the general public;

Hearing rooms, conference rooms, meeting rooms or any public service area of any facility owned, operated or managed by the city in which business is conducted, when the public business requires and/or provides an opportunity for direct participation and/or observation by the general public;

Any building or indoor or outdoor sports arena which is used for or designated for the purpose of exhibiting any motion picture, stage drama, lecture, musical recital, athletic event or any other event whenever open to the public, including all restrooms and any area commonly referred to as a lobby; however, smoking, which is a part of a stage performance, is permitted;

Any retail or service establishment serving the general public, including but not limited to, any food products establishment, department store, restaurant, grocery store, private club, bingo parlor, bowling center, drug store, shopping mall, hair styling salons, including service lines;

All restrooms open for public use;

All areas in a laundromat open to and available to use by the public;

Within 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, commercial, financial and professional offices, including banks, hotels and motels; or

Within 20 linear feet of any entrance of any facility where smoking is prohibited.

(2)

Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility described in this section may declare the entire establishment or facility as a nonsmoking establishment.

(3)

It shall be a defense to prosecution under this section that the public place in which the offense takes place does not have prominently displayed a conspicuous notice that smoking is prohibited and that an offense is punishable by a fine not to exceed $2,000.00.

(b)

Prohibition of smoking in places of employment.

(1)

Where smoking is prohibited, it shall be the responsibility of employers to provide a smoke-free workplace for all employees.

(2)

Each employer having any enclosed place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy, which shall contain the following requirements:

"Smoking shall be prohibited in all enclosed facilities within a place of employment except where expressly permitted under city ordinance. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities."

(3)

The smoking policy shall be communicated to all employees within four (4) weeks of its adoption.

(4)

All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

(c)

Prohibited in parks.

A person commits an offense in violation of this article if, in any park, he smokes or smokeless tobacco is contained within the person's mouth.

(d)

Prohibited on portions of outdoor patios.

A person commits an offense in violation of this article if he smokes or possesses a burning tobacco, tobacco substitute, weed, other plant product, electronic cigarette or e-cigarette or liquid nicotine in an outdoor patio area of a retail or service establishment that is defined fully or partially by a barrier or that provides seating for patrons where any portion of the outdoor patio is located fewer than 10 linear feet from public property, an outdoor patio of another establishment or an operable window into a building.

(Ordinance 00-12-12, sec. 4, adopted 12/5/00; Ordinance 06-11-118, secs. 3, 8, adopted 11/7/06; Ordinance 14-02-08, sec. 2, adopted 2/18/14; Ordinance 14-08-45, sec. 3, adopted 8/5/14; Ordinance 19-03-14 adopted 3/5/19)

§ 54-21 Hospitals; health care facilities.

A person commits an offense in violation of this article if he smokes or possesses a burning tobacco, weed, other plant product, electronic cigarette or e-cigarette or liquid nicotine in any public area of a health care facility or hospital, including, but not limited to, clinics, physical therapy facilities, doctor's offices, nursing and convalescent homes, residential treatment centers/homes and dentists' offices. In bed space areas of health care facilities or hospitals, smoking shall be prohibited unless the smoking of a lawful substance is authorized by a physician as part of a medical directive or procedure. Separate ventilation exhaust may be required by the building official to accommodate such orders.

(Ordinance 00-12-12, sec. 5, adopted 12/5/00; Ordinance 14-02-08, sec. 2, adopted 2/18/14; Ordinance 19-03-14 adopted 3/5/19)

§ 54-22 Posting of signs.

The owner, operator or person in charge of an establishment or facility in which smoking is prohibited shall post signs in one or more conspicuous locations stating that smoking is prohibited and that an offense is punishable by a fine not to exceed $2,000.00.

(Ordinance 00-12-12, sec. 6, adopted 12/5/00; Ordinance 19-03-14 adopted 3/5/19)

§ 54-23 Compliance.

(a)

The building official, code enforcement, or other city official designated by the city manager, shall be responsible for compliance with this article as to facilities which are owned, operated or leased by the city. The building official shall provide each applicant applying for a nonresidential certificate of occupancy with a copy of this article.

(b)

The owner, operator, person in charge or manager of any facility regulated by this article shall comply with the provisions of this article.

(c)

The building official, code enforcement, or other city official designated by the city manager, in his sole discretion, may enforce this article by any of the following actions:

(1)

Serving written notice on the owner, operator, person in charge or manager of any facility, business or agency within the purview of this article, requiring the correction, within a specified reasonable time frame, of any violation of this article;

(2)

Requesting the city attorney to maintain an action for injunction to enforce the provisions of this article, to cause the correction of any such violation and for assessment and recovery of a civil penalty of such violation, including attorneys' fees; or

(3)

Issuing a municipal court citation to any violator of this article.

The remedies contained herein are cumulative of and in addition to any other remedies that are available to the city at law or in equity.

(d)

Any person may file a complaint with the city to initiate enforcement by the city.

(e)

In undertaking the enforcement of this article, the city is assuming an undertaking only to promote the general health, safety and welfare of its citizens. The city is not assuming any duty or obligation, nor is it imposing any duty and/or obligation on its officers and/or employees, nor is it liable in money damages or otherwise to any person who claims that the city and/or one of its officers and/or employees breached any such obligation, and the breach proximately caused injury.

(f)

This article shall not be interpreted nor construed to permit smoking where it is otherwise restricted by other applicable laws.

(Ordinance 00-12-12, sec. 7, adopted 12/5/00; Ordinance 06-11-118, sec. 4, adopted 11/7/06)

§ 54-24 Where smoking is not prohibited.

Notwithstanding any other provision of this article to the contrary, smoking is not prohibited in the following areas:

(1)

Private residences, except when used as a licensed child care, adult day care or health care facility;

(2)

Hotel and motel rooms rented to guests, if permitted by the hotel or motel;

(3)

Retail tobacco stores that have an enclosed smoking room provided that the following requirements are met:

Smoking rooms shall have a physical barrier to prevent the escape of visible smoke, vapor or other objectionable nonvisible products of smoking without any action required of adjacent tenant spaces.

Smoking rooms shall have dedicated ventilation systems separate from all other rooms or spaces where smoking is prohibited. Ventilation systems shall consist of exhaust, air purification, filtration, air exchange or a combination of methods to eliminate all visible and nonvisible products of smoking from the indoor environment.

Patrons shall not be required to enter or pass through smoking rooms to access required public sanitary facilities.

No person under 21 years of age shall be allowed entrance into or be required to work in a smoking room.

Entrance doors into a smoking room shall not allow entry into the smoking room directly from the exterior of the building. Entrance doors must allow entry only from a vestibule or an interior portion of a retail tobacco store.

(4)

Retail and service establishments that have an enclosed smoking lounge provided that the following requirements are met:

Smoking lounges shall have a physical barrier to prevent the escape of visible smoke, vapor or other objectionable nonvisible products of smoking without any action required of adjacent tenant spaces.

Smoking lounges shall have dedicated ventilation systems separate from all other rooms or spaces where smoking is prohibited. Ventilation systems shall consist of exhaust, air purification, filtration, air exchange or a combination of methods to eliminate all visible and nonvisible products of smoking from the indoor environment.

Patrons shall not be required to enter or pass through smoking lounges to access required public sanitary facilities.

No person under 21 years of age shall be allowed entrance into or be required to work in a smoking lounge.

The smoking lounge area shall be limited to a maximum of 15 percent of the gross floor area of the common or associated retail or service establishment.

Entrance doors into a smoking lounge shall not allow entry into the smoking lounge directly from the exterior of the building. Entrance doors must allow entry only from a vestibule or an interior portion of a retail or service establishment.

(5)

Any area of fraternal organization member space not serving the general public.

(6)

Any area exterior to the building in which the establishment or facility is located, except as otherwise regulated under section 54-20 of this article.

(7)

In retail electronic cigarette stores provided that only the smoking of e-cigarettes may be permitted and further provided that a physical barrier exists to prevent the escape of visible smoke, vapor or other objectionable nonvisible products of smoking without any action required of adjacent tenant spaces.

(Ordinance 00-12-12, sec. 8, adopted 12/5/00; Ordinance 06-11-118, sec. 5, adopted 11/7/06; Ordinance 14-02-08, sec. 2, adopted 2/18/14; Ordinance 19-03-14 adopted 3/5/19; Ordinance 2024-08-35 adopted 8/20/2024)

§ 54-25 Operation of smoking rooms, smoking lounges and retail electronic cigarette stores.

(a)

The building official may deny or order the cessation of the continued use of a smoking room, smoking lounge or retail electronic cigarette store if he determines that:

(1)

Visible smoke, vapor or other objectionable nonvisible products of smoking is migrating from the smoking room, smoking lounge or retail electronic cigarette store into a space, establishment, occupancy or use where smoking is prohibited; or

(2)

The smoking room, smoking lounge or retail electronic cigarette store has failed to meet any of the standards set forth in this article or tests prescribed by the building official.

(b)

Upon such a determination, the smoking room, smoking lounge or retail electronic cigarette store shall be prohibited from further use until compliance has been demonstrated to the building official through testing or other means.

(Ordinance 00-12-12, sec. 9, adopted 12/5/00; Ordinance 06-11-118, sec. 6, adopted 11/7/06; Ordinance 19-03-14 adopted 3/5/19)

§ 54-26 Violations and penalties.

(a)

It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with all of its provisions, except for violations noted in paragraph (b) of this section.

(b)

It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this article.

(c)

Any person who violates any provision of this article shall be guilty of an offense punishable by:

(1)

A fine not exceeding $100.00 for the first violation;

(2)

A fine not exceeding $200.00 for a second violation within a one-year period of the first violation; or

(3)

A fine not exceeding $500.00 for an additional violation within a one-year period of the first violation.

(Ordinance 00-12-12, sec. 10, adopted 12/5/00; Ordinance 06-11-118, sec. 7, adopted 11/7/06)

§ 54-27 Appeal.

The owner or operator of a smoking room, smoking lounge or retail electronic cigarette store that has been denied or ordered to cease the continued use of the smoking room, smoking lounge or retail electronic cigarette store under section 54-25 may appeal such denial or order as follows:

(1)

The owner or operator shall file a written notice of appeal with the building official within five business days of the date the decision was rendered or the action occurred. The notice must state the grounds for the appeal. The building official shall provide a written decision on the appeal within five business days. Failure to render a decision within five business days shall constitute a denial.

(2)

If the owner or operator's appeal to the building official is denied, the owner or operator may file a written notice of appeal to the director of the development services department within five business days of receipt of the building official's decision. The director of the development services department shall provide a written decision within five business days of receipt of an appeal in accordance with this section. Failure to render a decision within five business days shall constitute a denial.

(3)

If the owner or operator's appeal to the director of the development services department is denied, the owner or operator may file a written notice of appeal to the city manager within five business days of receipt of the director of the development services department's decision. The city manager shall provide a written decision within five business days of receipt of an appeal in accordance with this section. Failure to render a decision within five business days shall constitute a denial. The city manager's decision shall be final.

(Ordinance 19-03-14 adopted 3/5/19)

DIVISION 2 ILLEGAL SMOKING [1]

[1]

Editor's note-Ordinance 10-07-33, sec. 3, adopted July 29, 2010, enacted provisions intended as Art. II, secs. 54-28-54-32. To facilitate indexing, said provisions have been codified as Art. II, Div. 2, secs. 54-28-54-32.

§ 54-28 Illegal smoking material; purpose.

The purpose of this article is to prohibit the sale or delivery of illegal smoking materials as defined herein within the city limits of Frisco and to prohibit the possession of illegal smoking materials within the city limits. Any form of delivery to include a simple gift constitutes a violation of this article.