Editor’s note(s)—Ord. No. 8309, § 1, adopted April 26, 2005, amended Ch. 8 in its entirety to read as herein set out. Former Ch. 8, §§ 8-8-1—8-8-15, pertained to similar subject matter, and derived from ordinances listed in the code comparative table.
For the purposes of this article, the terms herein are defined
as follows:
means the City of Midland.
means the City hall building, the police and municipal court
buildings, all fire stations, the City warehouse, all water treatment
and sewage treatment buildings, all city shop buildings, the animal
services buildings, and the parks and recreation buildings, and all
other buildings owned by the City.
means the lighting, emitting, or inhaling the smoke, the
carrying or holding of a lighted pipe, cigar, or cigarette or any
other lighted smoking equipment or the ingestion, chewing, spitting
out or inhaling of snuff, chewing tobacco or any other product made
of tobacco.
(Ordinance 8309, sec. 1, adopted 4/26/05)
(a)
It shall
be unlawful for any person to use tobacco products in a city building.
Signs shall be posted at each entrance to the City building in English
and in Spanish prohibiting use of tobacco products. Ashtrays, containers
or other facilities for the containment of tobacco products shall
be provided at convenient locations outside each city building so
that persons attempting to bring tobacco products into the building
can easily discard them.
(b)
It is an exception to the application of subsection (a) of this section that such use of tobacco products has been authorized by an employee of the Midland Police Department for persons who are incarcerated, under arrest, being investigated for a crime, or being interviewed or questioned by the police or for persons, other than employees of the City who are participating in a criminal investigation.
(Ordinance 8309, sec. 1, adopted 4/26/05)
It shall be the duty of all city employees to enforce the provisions
of this chapter by informing the public and other city employees of
the requirements of this article.
(Ordinance 8309, sec. 1, adopted 4/26/05)
A person commits an offense if he or she:
(a)
Knowingly
or intentionally uses tobacco products in a city building.
(Ordinance 8309, sec. 1, adopted 4/26/05)
Any violations of section 8-8-4, offenses, shall also be a violation of the disciplinary rules of the City. Employees committing a violation may be subject to a full range of disciplinary action up to and including dismissal. Progressive discipline is encouraged but shall not be required under this section. Nothing in this section shall be construed to grant a right or entitlement to employment or termination for just cause.
(Ordinance 8309, sec. 1, adopted 4/26/05)
Nothing in this chapter shall be construed to permit smoking
where it is otherwise prohibited by law or regulations.
(Ordinance 8309, sec. 1, adopted 4/26/05)
The following terms, as used in this chapter, shall have the
meanings ascribed to them in this section, unless context clearly
indicates otherwise:
shall mean a system that creates an air curtain to prevent
drift or penetration of tobacco smoke from a smoking area to a nonsmoking
area and not allowing drift or penetration from the ceiling down to
24 inches above the floor.
shall mean an electrically powered hospital grade, heap media
filter that will clean all of the air in the designated smoking area
every 15 minutes as follows: not less than 95 percent of 0.3-micron
particulate efficiency including, but no limited to, dust, smoke,
pollen, mold spores, bacteria, tobacco smoke, viruses and allergens
and not less than 95 percent removal of gases, vapors, volatile organic
compounds (V.O.C.) and odors.
shall mean the City of Midland building official, or his/her
designee, charged with, among other things, the enforcement for compliance
with any mechanical, electrical, structural or nonstructural modifications,
or signage requirements for compliance with this chapter.
shall mean an area which has been designated for smoking.
shall mean restrooms, reception areas, lobbies, service line
areas, public telephone areas, and other areas commonly used by all
patrons, including access thereto. However, common areas shall not
include access to a restroom from a nonsmoking area if the premises
are in full compliance with this ordinance.
means any restaurant, coffee shop, cafeteria, luncheonette,
tavern, sandwich stand, soda fountain, private and public school cafeteria
or eating establishment or any other eating establishment which gives
or offers for sale, food to the public, guests, patrons or employees.
Other food product establishments include, but are not limited to,
grocery stores and food markets, not including those outdoors.
shall mean the City of Midland, Texas.
as used herein shall mean a barrier that will form an effective
membrane continuous from the inside of the outside wall to the inside
of the outside wall, from a smoke barrier to a smoke barrier, from
floor to deck or roof structure above, or any combination thereof,
including continuity through all concealed spaces, including above
suspended or lay in ceilings, interstitial structural and mechanical
spaces. Self-closing, smoke tight doors shall protect openings in
such barriers, or other approved air barrier systems.
shall mean any building, premise or portion thereof which
is permitted by the state and allowed by the zoning ordinance of the
City as a private club for the storing, possession and dispensing
for on-premise consumption of alcoholic beverages. Private club does
include a premise 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.
shall mean any indoor and/or enclosed area, whether existing
prior to or subsequent to the effective date of the ordinance from
which this chapter derives, that is open to or is used by the general
public and includes the common area.
means the use of any vehicle or mode of transportation providing
transportation to the public over the streets of the City including
any taxicab, bus, limousine, courtesy van or touring vehicle. It includes
the area occupied by the operator as well as the passenger area.
means any establishments used in connection with public transportation
conveyances wherein the public is provided access.
shall mean any establishment which sells goods or services
to the general public.
means a retail store devoted primarily to the sale of any
tobacco product, including but not limited to cigarettes, cigars,
pipe tobacco and chewing tobacco, and accessories and in which the
sale of other products is merely incidental. The sale of such other
products shall be considered incidental if such sales generate less
than 50 percent of the total annual gross sales.
shall mean 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.
shall mean any required signage for smoking, no smoking or
designated smoking areas, and shall refer to Exhibit A. (Exhibit A
is on file with the City clerk.)
shall mean an HVAC system designed to a professional engineering
standard to meet the requirements of the City's mechanical code, as
amended.
(Ordinance 8309, sec. 1, adopted 4/26/05)
(a)
A person
commits an offense in violation of this chapter by smoking in any
public area in any of the following places in the City, and an offense
is punishable by fine not to exceed $500.00.
(1)
A
public or private preschool, primary or secondary school;
(2)
Elevators,
museums, libraries, galleries, public transportation conveyances and
facilities;
(3)
Any
building which is used for or designated for the purpose of exhibiting
any motion picture, stage drama, lecture, musical recital, athletic
event or any other such event whenever open to the public;
(4)
Any
retail or service establishment serving the general public, including,
but not limited to, any food products establishment, commercial indoor
amusement, department store, bowling center, bar, night club, tavern,
lounge, sexually oriented business, billiard hall, laundromat, bank,
drug store, shopping mall, hair, nail or tanning salon or tattoo parlor;
(5)
Within
all areas available to and customarily used by the general public
in all buildings of governmental subdivisions of the state located
in the City, not the state or federal government, nonprofit entities
patronized by the public, and private institutions of education;
(6)
Within
any public area of a health care facility or hospital, including,
but not limited to, clinics, physical therapy facilities, nursing
and convalescent homes, residential treatment centers/homes and doctors'
and dentists' facilities; or
(b)
Notwithstanding
any other provision of this chapter to the contrary, smoking is not
prohibited in the following areas:
(1)
Private
residences, except when used as a licensed child care facility, health
care facility, group care home, community home or other commercial
use;
(2)
Hotel
and motel rooms rented to guests;
(3)
Retail
tobacco stores;
(4)
Any
area exterior to the building in which the establishment or facility
is located;
(5)
Any
enclosed rooms in an establishment which are being used entirely for
private parties, events or other social functions or by a private
club;
(6)
Enclosed
areas of an employer that are not available to the general public;
(7)
Any
designated smoking area that meets the requirements specified herein;
or
(8)
General
and administrative offices, professional, educational, or governmental
offices primarily used by employees, and not the public.
(9)
Premises
on which bingo is conducted by a licensed authorized organization
and the premises must be owned or leased by a licensed commercial
lessor, as authorized by Chapter 2001 of the Texas Occupations Code,
as amended.
(c)
Each
of the following circumstances shall be a defense to prosecution under
this section:
(1)
The
public place in which the offense takes place does not have prominently
displayed a reasonably sized sign that smoking is prohibited by law
and that an offense is punishable by a fine not to exceed $500.00,
or as authorized by law;
(2)
In a facility listed in subsection (a)(6), all patients within the room are smokers and such smoking is ordered on the health care facility's admission form by an attending physician, in keeping with the guidelines established by the facility. Separate ventilation exhaust may be required by the building official to accommodate such orders;
(3)
The
smoking occurred in any public transportation conveyance or public
place set out in this section that are not equipped with facilities
for extinguishment of smoking materials;
(4)
The
person who is smoking does so exclusively within an area designated
for smoking tobacco; or
(5)
As
a participant in an authorized theatrical performance.
(Ordinance 8309, sec. 1, adopted 4/26/05)
A.
The owner, operator or person in charge of a public area described in section 8-8-8(a), and not excluded by section 8-8-8(b), shall be guilty of an offense and subject to a fine not to exceed $500.00, and subject to the other remedies provided in this chapter, for failure to comply with the following requirements:
(1)
Failure
to post signs, when required by the ordinance, which designate smoking
or no smoking areas that are reasonably-sized, and prominently displayed
and, in the case of signs which designate no smoking, state that smoking
is prohibited by law and an offense which is punishable by a fine
not to exceed $500.00, or as authorized by state law.
(2)
When
smoking is prohibited, failure to provide facilities for extinguishment
of smoking materials within 20 feet of, and outside of, the public
entrances, or as otherwise required by law.
(Ordinance 8309, sec. 1, adopted 4/26/05)
A.
In the
event that both a smoking area and a nonsmoking area are designated,
the owner, operator or person in charge of the public area shall provide
for the smoking areas to meet the following requirements:
(1)
Such
smoking areas are equipped with a functional air purification system
or functional separate ventilation system. Such systems shall have
a negative pressure on the area designated for smoking to prevent
air from a smoking area to be drawn across or into the nonsmoking
area. All ventilation systems shall provide a total air exchange every
15 minutes and shall exhaust that air to the exterior of the building.
The system must also contain an air barrier system approved by the
building official. All systems shall be tested not less than every
six months by a Texas Licensed HVAC Contractor and such test results
shall be made available to the building official when requested and
the owner, operator or person in charge may be required to pass additional
tests in the future as determined necessary by the building official
if the adequacy of the system appears to fail to meet the objectives
of this chapter or as a periodic maintenance check. The owner, operator
or person in charge shall keep the records of the test for a minimum
period of two years from the date of the tests.
Exception: An alternate system not complying with the above
can be substituted, provided:
a.
Designated
smoking areas must be substantially separated from the nonsmoking
areas by physical barrier.
b.
Designated
smoking areas must be provided a separate HVAC system from those serving
nonsmoking areas.
c.
The
system must remove visual smoke at a rate of four times per hour and
that air from designated smoking areas must not be drawn across nonsmoking
areas.
(2)
All
systems shall be tested not less than every six months by a Texas
Licensed HVAC Contractor and such test results shall be made available
to the building official when requested and the owner, operator or
person in charge may be required to pass additional tests in the future
as determined necessary by the building official if the adequacy of
the system appears to fail to meet the objectives of this chapter
or as a periodic maintenance check. The owner, operator or person
in charge shall keep the records of the test for a minimum period
of two years from the date of the tests.
(3)
A
sign, reasonably sized, must be prominently displayed by the owner,
operator or person in charge of the public area on the premises and
state that smoking is permitted in the designated smoking area and
where smoking is not permitted, prominently display a reasonably sized
sign or signs that give notice that smoking is prohibited by law and
that an offense is punishable by a fine not to exceed $500.00, or
as authorized by law.
(4)
Designated
smoking areas shall not include common areas.
(5)
Failure
to meet these standards will result in the denial of the opportunity
to operate such smoking area. Smoking areas failing the prescribed
test or not in compliance with the requirements contained herein shall
be deemed to be nonsmoking until successfully tested.
(6)
All
children's playgrounds associated with eating establishments shall
be nonsmoking. All doors and gates leading to such play areas shall
be posted with separate no smoking signs that comply with section
8-8-9(1) or state law.
(7)
This
section shall be applicable to public transportation facilities.
(Ordinance 8309, sec. 1, adopted 4/26/05)
It shall be a defense to section 8-8-9, unless required by law, that the owner, operator, or person in charge of any establishment or facility described in this chapter has declared the establishment or facility as a smoking establishment by posting signs that are clearly visible at all public entrances stating "smoking area only" and has not attempted in any way to designate both a smoking area and a nonsmoking area. This section shall not be applicable to public transportation facilities.
(Ordinance 8309, sec. 1, adopted 4/26/05)
A.
In the
event that the public area is one which is designated as no smoking,
the owner, operator or person in charge shall:
(Ordinance 8309, sec. 1, adopted 4/26/05)
There shall be a requirement of a culpable mental state for
a violation of this chapter.
(Ordinance 8309, sec. 1, adopted 4/26/05)
(a)
The
building official or designee shall provide each applicant for a certificate
of occupancy with a copy of the ordinance from which this chapter
derives.
(b)
All
persons, owners, operators, persons in charge or managers of any facility,
business or agency within the purview of this chapter shall comply
with the provisions of this chapter.
(c)
The
building official or his designee, the Midland Police Department and
Fire Department, may enforce this chapter 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 chapter, requiring the correction, within a specified reasonable
time frame, of any violation of this chapter;
(2)
Issuing a municipal court citation; or
(3)
In cases where occupancy permits are required, the building official
may deny an occupancy permit.
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The Midland Health Department may enforce the ordinance as described
in subsection (a)(1) above.
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(d)
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.
(e)
In
undertaking the enforcement of this chapter, 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:
(Ordinance 8309, sec. 1, adopted 4/26/05)
