AN ORDINANCE ADDING ARTICLE 7.1000 TO THE CODE OF ORDINANCES OF THE CITY OF FREDERICKSBURG, TEXAS PROHIBITING SMOKING IN CERTAIN PUBLIC PLACES ESTABLISHING DEFINITIONS; DISPENSING WITH A CULPABLE MENTAL STATE; REPEALING ALL ORDINANCES IN CONFLICT; CONTAINING A SAVINGS CLAUSE; AND ESTABLISHING AN EFFECTIVE DATE.

WHEREAS, the City Council of the City of Fredericksburg, Texas believes that primary and secondary tobacco smoke inhalation has been shown to be harmful to health, contributing to several different cancer formations, respiratory deterioration, cardiac and circulatory diseases, that smoking in public places creates a nuisance and a health hazard for those persons gathered in and occupying public places, and that in order to promote the public health safety and welfare that smoking in public places should be limited as hereinafter set out.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FREDERICKSBURG, TEXAS:

Chapter 7 of the Code of Ordinances, City of Fredericksburg is hereby amended by adding Article 7.000 Smoking in Certain Public Places which said Article shall read as follows:

7.1001. 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:

(a) Bar means any commercial establishment that derives fifty-one percent (51%) or more of its annual gross sales receipts from the sale of alcoholic beverages as defined by the Texas Alcoholic Beverage Code and has a valid on-premises consumption license issued by the Texas Alcoholic Beverage Commission or a portion of a commercial/food establishment that is physically separated from the rest of the establishment by an impermeable barrier exclusive of appropriate openings for ingress and egress and that portion of the establishment is independently ventilated and that portion of the establishment derives fifty-one percent (51%) or more of its annual gross sales receipts from the sale of alcoholic beverages as defined by the Texas Alcoholic Beverage Code and has a valid on-premises consumption license issued by the Texas Alcoholic Beverage Commission.

(b) Director means the director of the department designated by the City Manager to enforce and administer this article or the director’s designated representative.

(c) Employee means any person who is employed by any employer from direct or indirect monetary wages, commissions or profit, or is in a position that would lead one to believe that such person is so employed.

(d) Employer means any person, partnership, corporation, association or other entity that employs one or more persons.

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

(f) Food establishment means any operation engaged in the preparation or sale of prepared ready-to-eat food, if such operation accounts for more than fifty-one percent (51%) of annual gross sales receipts. For the purpose of this section a food establishment does not include an outdoor patio.

(g) Governmental entity means a state, a municipality, county, school district, or appraisal district.

(h) Health care facility means any hospital or institution that provides medical or surgical services for patients.

(i) Independently ventilated means that the heating, ventilation and air conditioning system for a bar area does not allow for the mixing of air from the bar area to a public area or public place served by the same ventilation system or another ventilation system.

(j) Public place means any enclosed area that is open to or is used by the general public, or that is a place of employment and includes, but is not limited to: retail stores, grocery stores, offices, professional, commercial or financial establishments, food establishments, movie theaters, public and private institutions of education, health care facilities, nursing and convalescent homes, residential treatment facilities, buildings owned or occupied by political subdivisions and public restrooms. For the purpose of this article, a public place does not include a private residence, bar, tobacco shop, hotel and motel rooms that are rented to guests, private clubs or outdoors or private offices. Any public places regulated by other statutes or other governmental administrative rules which conflict with or which preempt local regulation are exempt from the provisions hereof to the extent of such conflict or preemption.

(k) Private club means any building, premises or portion thereof which is wholly owned or leased from other than a governmental entity by a non-profit corporation organized under Chapter 501 (c)(3) of the United States Internal Revenue Code, as amended.

(l) Private Office is an individual's office from which the public is not barred but to which the public goes primarily by invitation or appointment. Such office shall be an office in which there are no employees.

(m) Movie theater means any establishment engaged in the business of exhibiting motion pictures to public. The same are regulated hereby even if meeting the definition of private club.

(n) Outdoors means any area that is not enclosed.

(o) Smoke or smoking means the carrying or holding of a lighted pipe, cigar or cigarette of any kind, or any other lighted smoking material, equipment or device, and the lighting, emitting or exhaling the smoke of a pipe, cigar, or cigarette of any kind.

(p) Tobacco means any tobacco, cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco, which may be utilized for smoking, chewing, inhalation or other means of ingestion or absorption.

(q) Tobacco shop means any commercial establishment that derives fifty-one percent (51%) of its annual gross receipts from the sale of tobacco and tobacco accessories.

7.1002. Smoking Prohibited in Public Places.

Smoking is hereby prohibited in all public places within the city limits of the City of Fredericksburg.

It is an affirmative defense to prosecution under this article that the person was smoking in a bar, tobacco shop, a rented hotel or motel room of any kind, private clubs, outdoors, or in a place where these regulations are in conflict with or preempted by other law as defined above.

7.1003. Signs and Receptacles.

(a) The owner or other person having authority to manage and/or control any area designated as a public place, pursuant to this article, shall post or cause to be posted and visibly displayed, and shall maintain "No Smoking" signs in a form approved by the Director, in conspicuous locations within such public place. Such signs shall clearly and conspicuously recite the phrase "No Smoking" in the English and Spanish language and/or use the international no-smoking symbol.

(b) The owner or other person having authority to manage and/or control any area designed as a public place pursuant to this article shall cause to be placed a receptacle for smoking materials which is approved by the Fire Marshall of the City of Fredericksburg outdoors at each entrance to all public places as defined herein.

7.1004. Reporting Violations.

This article does not require the owner, operator, employer, manager or any employee to report a violation of this article.

7.1005. Penalties for Violation.

(a) Any person, firm, partnership or corporation who violates any provision of this section shall be guilty of a Class "C" Misdemeanor and shall be punished by a fine within the limits established by Section 1.106 (a) of the code of ordinances of the City of Fredericksburg.

(b) It is hereby declared that the culpable mental state required by Chapter 6.02 of the Texas Penal Code is specifically negated and clearly dispensed with, and such offense is declared to be a strict liability offense.

-END OF CODE TEXT-

All other ordinances or parts of ordinances in conflict herewith repealed to the extent that they are in conflict.

That if any of the provisions of this ordinance shall be held void or unconstitutional, it is hereby provided that all other part of the same which are not held void or unconstitutional shall remain in full force and effect.

This ordinance will take effect upon its passage and publication in accordance with the law.

PASSED AND APPROVED THE 7th DAY OF NOVEMBER, 2002.