ORDINANCE NO. 128-14 – 10/10

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ORDINANCE NO. 128-14
AN ORDINANCE AMENDING VARIOUS SECTIONS OF ARTICLE II OF CHAPTER 11 OF THE CITY CODE OF THE CITY OF OPELIKA, ALABAMA TO REGULATE THE USE OF ELECTRONIC SMOKING DEVICES IN PUBLIC PLACES AND PLACES OF EMPLOYMENT
BE IT ORDAINED by the City Council (the “Council”) of the City of Opelika, Alabama (the “City”), as follows:
Section 1. Amendment to Section 11-31. That Section 11-31 of the Code of Ordinances of the City of Opelika is hereby amended as follows:
Sec. 11-31. Findings and Intent
The City of Opelika does hereby find that:
(1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of up to 65,000 Americans annually. (National Cancer Institute (Nd), “Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10,” Bethesda, MD: National Institutes of Health, National Cancer Institute (NC), August 1999.)
(2) The Public Health Service’s National Toxicology Program (NTP) has listed secondhand smoke as a known carcinogen. (Environmental Health Information Service (EHIS), “Environmental tobacco smoke: first listed in the Ninth Report on Carcinogens,” U.S. Department of Health and Human Services (DHHS), Public Health Service, NTP, 2000; reaffirmed by the NTP in subsequent reports on carcinogens, 2003, 2005.)
(3) A study of hospital admissions for acute myocardial infarction in Helena, Montana before, during, and after a local law eliminating smoking in workplaces and public places was in effect, has determined that laws to enforce smokefree workplaces and public places may be associated with a reduction in morbidity from heart disease. (Sargent, Richard P.; Shepard, Robert M.; Glantz, Stanton A., “Reduced incidence of admissions for myocardial infarction associated with public smoking ban: before and after study,” British Medical Journal 328: 977-980, April 24, 2004.)
(4) Secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities, and cancer. (California Environmental Protection Agency (Cal EPA), “Health effects of exposure to environmental tobacco smoke”, Tobacco Control 6(4): 346-353, Winter, 1997.)
(5) The Americans With Disabilities Act, which ‘requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability. (Daynard, R.A., “Environmental tobacco smoke and the Americans with Disabilities Act,” Nonsmokers’ Voice 15(1): 8-9.)
(6) The U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not: eliminate, the exposure of nonsmokers to secondhand smoke. (Department of Health and Human Services. The Health Consequences of Involuntary Smoking: A Report of the Surgeon General. Public Health Service, Centers for Disease Control, 1986.) The Environmental Protection Agency has determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only capable of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in secondhand smoke. (Environmental Protection Agency (EPA), “Indoor air facts no. 5: environmental tobacco smoke,” Washington, D.C.: Environmental Protection Agency (EPA), June 1989.)
(7) The Centers for Disease Control and Prevention has determined that the risk of acute myocardial infarction and coronary heart disease associated with exposure to tobacco smoke is non-linear at low doses, increasing rapidly with relatively small doses such as those received from secondhand smoke or actively smoking one or two cigarettes a day, and has warned that all patients at increased risk of coronary heart disease or with known coronary artery disease should avoid all indoor environments that permit smoking. (Pechacek, Terry F.; Babb, Stephen, “Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke?” British Medical Journal 328: 980-983, April 24, 2004.)
(8) A significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer a 25-50{44c616e11cf70d617c8dd92fb0bc15f41001df771f775c6b004238009c89a3f0} higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as ‘well as increased acute respiratory disease and measurable decrease in lung function. (Pitsavos, C.; Panagiotakos, D.B.; Chrysohoou, C.; Skoumas, J.; Tzioumis, K.; Stefanadis, C.; Toutouzas, P., “Association between exposure to environmental tobacco smoke and the development of acute coronary syndromes: the CARDIO2000 case-control study,” Tobacco Control 11(3): 220-225, September 2002).
(9) Smoke-filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for diseases related to exposure to secondhand smoke. (“The high price of cigarette smoking,” Business & Health 15(8), Supplement A: 6-9, August 1997.)
(10) Numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smokefree. Creation of smokefree workplaces is sound economic policy and provides the maximum level of employee health and safety. (Glantz, S.A. & Smith, L. The effect of ordinances requiring smokefree restaurants on restaurant sales in the United States. American Journal of Public Health, 37:1687-1693, 1997; Colman, R.; Urbonas, CM., “The economic impact of smoke-free workplaces: an assessment for Nova Scotia, prepared for Tobacco Control Unit, Nova Scotia Department of Health,” GPI Atlantic, September 2001.)
(11) Smoking is a potential cause of fires; cigarette and. cigar burns and ash stains on merchandise and fixtures causes economic damage to businesses. (“The high price of cigarette smoking,” Business & Health 15(8), Supplement A: 6-9, August 1997.)
(12) The smoking of tobacco is a form of air pollution, a positive danger to health, and a material public nuisance.
(13) Electronic smoking devices, commonly known as “electronic cigarettes”, “e-cigarettes”, “e-cigars”, “e-cigarillos”, “e-pipes”, “e-hookahs”, “electronic nicotine delivery systems”, etc., are electric or battery operated devices designed to deliver nicotine, flavor and/or other substances through a vapor inhaled by the user.
(14) The use of electronic smoking devices has increased significantly in recent years.
(15) More than one study has concluded that exposure to vapor from electronic smoking devices may cause passive or second-hand vaping.
(16) Some cartridges used by electronic smoking devices can be re-filled with liquid nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine.
(17) Electronic smoking devices often mimic conventional tobacco products in shape, size and color with the user exhaling smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products.
(18) The use of electronic smoking devices in smokefree locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made.
Accordingly, the City Council finds and declares that the purposes of this ordinance are (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; and (2) to guarantee the right of nonsmokers to breathe smokefree air, and to recognize that the need to breathe smokefree air shall have priority over the desire to smoke.
Section 2. Amendment to Section 11-32. That Section 11-32 of the Code of Ordinances of the City of Opelika is hereby amended as follows:
Sec. 11-32. Definitions
The following words and phrases, whenever used in this Article, shall be construed as defined in this Section:
“Bar” means an establishment that is devoted primarily to the serving of alcoholic beverages for consumption by guests on the premises and where food sales represent twenty-five percent (25{44c616e11cf70d617c8dd92fb0bc15f41001df771f775c6b004238009c89a3f0}) or less of the bar’s gross annual receipts. This definition includes, but is not limited to, taverns, nightclubs, cocktail lounges, and cabarets.
“Business” means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered; and private clubs.
City means City of Opelika.
City Council means City Council of the City of Opelika.
“Electronic Smoking Device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic Smoking Device” includes any such device, whether manufactured, distributed, marketed or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “Electronic Smoking Device” does not include any product specifically approved by the United States Food & Drug Administration for the use in the mitigation, treatment or prevention of disease.
“Employee” means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his or her services for a non-profit entity.
“Employer” means a person, business, partnership, association, corporation, including a municipal corporation, trust, or non-profit entity that employs the services of one or more individual persons.
“Enclosed Area” means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of doorways), which extend from the floor to the ceiling.
“Health Care Facility” means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.
“Place of Employment” means an area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles. A private residence is not a “place of employment” unless it is used as a child care, adult day care, or health care facility.
“Private Club” means an organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain, and which only sells alcoholic beverages incidental to its 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 as a club under 26 U.S.C. Section 501.
“Public Place” means an enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, health care facilities, hotel and motel lobbies, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. A private club is a “public place” when being used for a function to which the general public is invited. A private residence is not a “public place” unless it is used as a’ child care, adult day care, or health care facility.
“Restaurant” means an eating establishment, including but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term “restaurant” shall include a bar area within the restaurant.
“Retail Tobacco Store” means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.
“Service Line” means an indoor line in which one (1) or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money.
“Shopping Mall” means an enclosed public walkway or hall area that serves to connect retail or professional establishments.
“Smoke” or “Smoking” means inhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, or other tobacco or plant product intended for inhalation, in any manner or in any form. Smoking also includes the use of any electronic smoking device or the use of any oral smoking device that generates smoke or which creates a vapor, in any manner or in any form. It shall be a violation of this article to use an electronic smoking device in any place within the City of Opelika where smoking of tobacco products is prohibited by law.
“Sports Arena” means sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events.
Section 3. Amendment to Section 11-37. That Section 11-37 of the Code of Ordinances of the City of Opelika is hereby amended as follows:
Sec. 11-37. Prohibition of Smoking in municipal buildings and facilities and places of entertainment or recreation.
Smoking shall be prohibited in the following places:
(1) All buildings and facilities owned, operated or controlled by the City or any agency of the City.
(2) Any place of entertainment or recreation including but not limited to baseball fields, softball fields, soccer fields, frisbee golf courses; or any other area established or constructed for the primary purpose of organized recreation or sporting events, stadiums, gymnasiums, theaters, concert halls, sports arenas and swimming pools.
Section 4. Savings Clause. That Article II of Chapter 11 of the Code of Ordinances, as amended, shall be and remain in full force and effect save and except as amended by this Ordinance.
Section 5. Repealer Clause. All former ordinances or parts thereof conflicting or inconsistent with the provisions of this Ordinance or the sections hereby amended are repealed.
Section 6. Severability Clause. If any section, clause, provision or portion of this ordinance is held to be invalid or unconstitutional by any Court of competent jurisdiction, said holding shall not effect any other section, clause, provision or portion of this Ordinance which is not in or of itself invalid.
Section 7. Construction Clause. If any section, paragraph, sentence or word of this Ordinance or the sections hereby amended are declared for any reason to be invalid, it is the intent of the City Council that it would have passed all other portions of this Ordinance and the sections hereby adopted independent of the elimination therefrom of any portion that may be declared invalid.
Section 8. Effective Date. This ordinance and the sections hereby amended shall take effect and be enforced immediately upon its adoption and publication as required by law.
Section 9. Publication. The City Clerk of the City of Opelika, Alabama is hereby authorized and directed to cause this Ordinance to be published one (1) time in a newspaper of general circulation published in the City of Opelika, Lee County, Alabama.
ADOPTED AND APPROVED this the 7th day of October, 2014.
/s/ C. E. “Eddie” Smith, Jr.
PRESIDENT OF THE CITY COUNCIL OF THE
CITY OF OPELIKA, ALABAMA
ATTEST:
/s/ R. G. Shuman
CITY CLERK
TRANSMITTED TO MAYOR on this the 8th day of October, 2014.
/s/ R. G. Shuman
CITY CLERK
ACTION BY MAYOR
APPROVED this the 8th day of October, 2014.
/s/ Gary Fuller
MAYOR
ATTEST:
/s/ R. G. Shuman
CITY CLERK
Legal run 10/10/14

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