DIVISION 3 SMOKING IN PUBLIC PLACES

Holds a valid billiard hall license issued by the town, if required under any ordinance and/or code of the town, whether now existing or in the future arising;

Has at least 12 billiard tables that are not coin-operated available for rent to persons desiring to play billiards on the premises; and

Code enforcement officer.

Derives 70 percent or more of its gross revenue on a quarterly (three month) basis from the sale or service of alcoholic beverages, as defined in the Texas Alcoholic Beverage Code, for on-premises consumption and from the rental of billiard tables and billiard equipment to persons desiring to play billiards on the premises.

The code enforcement officer, or his/her designee, of the town designated and authorized to enforce and administer this article.

Eating establishment.

Any establishment that prepares or serves food or beverages, regardless of whether the establishment provides seating or facilities for on-premises consumption. The term includes, but is not limited to, restaurants, coffee shops, cafeterias, short order cafes, fast food establishments, luncheonettes, lunchrooms, soda fountains, food carts, food vending vehicles and catering establishments.

Employee.

Any person who works for hire at a designated indoor area including an independent contractor with an assigned indoor location.

Employer.

Any person who employs five or more employees.

Enclosed.

An area that:

Is closed in overhead by a roof or other covering of any material, whether permanent or temporary; and

Food products establishment.

Has 40 percent or more of its perimeter closed in by walls or other coverings of any material, whether permanent or temporary.

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.

Hospital.

Any institution that provides medical, surgical and overnight facilities for patients.

Minor.

Any individual under 18 years of age.

Person.

An individual, firm, partnership, association or other legal entity.

Private club.

Any building, premises or portion thereof which is permitted by the state and allowed by special use permit by the town 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.

Prosper.

The Town of Prosper, Texas.

Public service 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 or service establishment.

Any establishment that sells goods or services to the general public, including but not limited to, any food products establishment, eating establishment, restaurant, private club, hotel, motel, department store, grocery store, drug store, shopping mall, laundromat, bingo parlor, bowling center or hair styling salon, including service lines.

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.

Second-hand smoke.

Ambient smoke resulting from the act of smoking.

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.

Inhaling, exhaling, possessing, or carrying any lighted or burning cigar or cigarette, or any pipe or other device that contains lighted or burning tobacco or tobacco products.

Workplace.

Any indoor area where an employee works for an employer, including an administrative area but excluding:

Domestic residence;

Factory or warehouse where smoking is regulated by another town ordinance or a state or federal law;

An enclosed room with only one regular occupant; or

§ 6.02.063 Smoking prohibited in certain public areas.

Any area that is generally accessible to the public or to a minor and that is regulated under § 6.02.063 of this article.

(Ordinance 07-078, § 3, adopted 9/11/2007)

(a)

A person commits an offense in violation of this article if he/she smokes or possesses a burning tobacco, weed or other plant product in any of the following indoor and/or enclosed areas:

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 used by the public;

Hospitals or nursing homes;

Any facility owned, operated or managed by the town including parks and athletics fields;

(5)

Any retail or service establishment;

(6)

All restrooms open for public use;

(7)

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;

(8)

Within ten linear feet of any entrance of any facility where smoking is prohibited; or

(9)

Any establishment or area marked with a no smoking sign complying with subsection (b) of this section by the owner, operator or person in control of the establishment, facility or area.

(b)

The owner, operator or person in charge of a facility in which smoking is regulated shall post signs which designate smoking or no-smoking areas established by this article. The manner of such posting shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place so long as the signs are conspicuous and state that smoking is prohibited and that an offense is punishable by fine not to exceed $2,000.00.

(c)

The owner or person in control of a bar qualifying for a defense to prosecution under subsection (d)(3) of this section or a billiard hall qualifying for a defense to prosecution under subsection (d)(6) of this section may designate smoking areas, except that the designated smoking areas may not include:

The entire establishment;

Cashier areas; or

Restrooms.

(d)

It is a defense to prosecution under subsection (a) of this section if the person was smoking in a location that was:

A private residence, except that this defense does not apply when the residence is being used as a child-care facility, adult day-care facility, or health care facility;

An administrative area or office of an establishment described in subsection (a)(2), (a)(3) or (a) (5) of this section if the administrative area or office is physically separated from those areas of the establishment where smoking is prohibited, except that this defense does not apply if the location was posted as a nonsmoking area under § 6.02.064 of this article;

A bar that does not open into any other establishment in which smoking is prohibited under this section, except that this defense does not apply if:

Any part of the bar is generally accessible by a minor;

The bar opens into a hotel or motel; or

(C)

The location was posted as a nonsmoking area by the owner or person in control of the bar with a sign complying with subsection (b) of this section;

A retail or service establishment that:

Derives 90 percent or more of its gross revenue on a quarterly (three month) basis from the sale of tobacco, tobacco products or smoking implements; and

Does not open into any other establishment in which smoking is prohibited under this section;

(5)

An unenclosed outdoor seating area of an eating establishment, except that this defense does not apply if:

The outdoor seating area is adjacent to a playground or play area for children; or

The location was posted as a nonsmoking area by the owner or person in control of the establishment with a sign complying with subsection (b) of this section;

(6)

A billiard hall that does not open into any other establishment in which smoking is prohibited under this section, except that this defense does not apply if:

Any part of the billiard hall is generally accessible by a minor; or

The location was posted as a nonsmoking area by the owner or person in control of the billiard hall with a sign complying with subsection (b) of this section.

(e)

It is a defense to prosecution under subsection (b) of this section that the establishment or area is a location for which a defense to prosecution is provided under subsection (d) of this section.

(Ordinance 07-078, § 4, adopted 9/11/2007)

§ 6.02.064 Workplace.

(a)

Employer workplace requirements.

An employer who, occupies or controls a workplace shall:

Have and implement a written policy on smoking that:

Conforms to this article;

Reasonably accommodates the interests of both smokers and nonsmokers, but minimizes the involuntary exposure of nonsmokers to second-hand smoke;

(C)

Designates nonsmoking areas so as to use existing structural barriers and ventilation to minimize involuntary exposure of nonsmokers to second-hand smoke; and

(D)

Establishes a procedure for addressing employee complaints;

Provide conspicuous signage indicating nonsmoking areas;

Not discharge, retaliate or discriminate against any employee who:

Files any complaint or causes any proceeding to be instituted under or related to this article;

Testifies or will testify in any proceeding instituted under this article; or (C)

(C)

Exercises on his/her own behalf or the behalf of others any right afforded by this article; and