Loading...
19 - Prohibit the Use of Electronic Cigarettes in Public Places and provide for a variance for semi-enclosed areas of places of employmentItem No. 19 Memorandum TO: Mayor, Mayor Pro -Tem & City Council Grayson Path, City Manager FROM: Robert G. Vine, Assistant City Manager Stephanie H. Harris SUBJECT: Smoking Ordinance Amendment DATE: June 27, 2022 BACKGROUND: NOTE: This is an updated memorandum from the June 13th memorandum on the same subject. E -cigarettes and "vaping" have become very popular, especially with young adults and the youth, as an alternative to traditional tobacco cigarettes. Some e -cigarettes contain nicotine and some do not. Current city ordinances do not regulate the use of e -cigarettes. In addition, you may recall a discussion sometime back regarding instituting a variance process by which a business such as Turner Pipe could apply for a variance to the prohibition against smoking in semi -enclosed areas such as Turner Pipe's welding bay that have retractable walls or large garage doors. The impetus for this change was employees of Turner; when Turner drastically reduced its workforce, the matter was placed on the back burner. STATUS OF ISSUE: According to the U.S. Centers for Disease Control (CDC), most e -cigarettes contain nicotine, a known neurotoxin considered one of the most highly addictive substances available for public consumption, which can harm the developing adolescent brain (which keeps developing until about the age of 25), including long-lasting changes in brain regions involved in addiction, attention, learning, and memory. While users inhale e -cigarette aerosol into their lungs, bystanders can also breathe in this aerosol when the user exhales it into the air. The FDA has also raised concerns about the epidemic levels of youth use of e -cigarettes, which may lead to the use of conventional tobacco products like combustible cigarettes and has issued a policy prioritizing enforcement against certain unauthorized flavored e -cigarette products that appeal to children. With respect to the variance procedure, the city attorney has drafted the procedure set out in the included proposed ordinance. It provides for a definition of "semi -enclosed area;" for an application; for a public hearing; and for a variance duration of three years, with renewal variances available. As directed by Council, the application is to be made by the business owner. Prior to the public hearing, an applicant must post a notice in the affected semi -enclosed area so that all employees will have notice in case they wish to speak on the issue. Application will be made through the Department of Planning and Community Development but authority to grant the variance lies with Council.. There is no appeal from the Council's decision. Update: At its meeting on June 13th, Council directed two changes to the draft ordinance: 1. That the application include a petition signed by the majority of employees to be affected by the proposed variance; and 2. That the application be signed by the plant or business manager and the business' human resources director. Both changes have been made in the attached ordinance. The changes have been underlined for your convenience. BUDGET: We anticipate a companion ordinance amending Appendix A to the Code of Ordinances at the next meeting setting out an application fee for the variance application. Any such fee would have little to no impact on the budget. RECOMMENDATION: It is the recommendation of staff that the City Council adopts the Amendment to the Smoking Ordinance (Article 7.03) to prohibit the use of e -cigarettes in public areas and to provide a variance procedure for smoking in semi -enclosed areas as presented. ORDINANCE NO. AN ORDINANCE OF THE CITY OF PARIS, TEXAS AMENDING CHAPTER 7, ARTICLE 7.03, "SMOKING," TO PROHIBIT THE USE OF ELECTRONIC CIGARETTES IN PUBLIC PLACES AND TO PROVIDE FOR A VARIANCE PROCEDURE FOR SEMI -ENCLOSED AREAS OF PLACES OF EMPLOYMENT; MAKING OTHER FINDINGS RELATED TO THE SAME; PROVIDING A REPEALER CLAUSE, A SEVERABILITY CLAUSE, A PENALTY CLAUSE AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on March 24, 2014, the City Council of the City of Paris, Texas approved Ordinance 2014-003 amending the Code of Ordinances to prohibit smoking in public places; and WHEREAS, according to the U.S. Centers for Disease Control (CDC), most e -cigarettes contain nicotine, a known neurotoxin considered one of the most highly addictive substances available for public consumption, which can harm the developing adolescent brain (which keeps developing until about the age of 25), including long-lasting changes in brain regions involved in addiction, attention, learning, and memory; and WHEREAS, while users inhale e -cigarette aerosol into their lungs, bystanders can also breathe in this aerosol when the user exhales it into the air; and WHEREAS, the FDA has also raised concerns about the epidemic levels of youth use of e -cigarettes, which may lead to the use of conventional tobacco products like combustible cigarettes and has issued a policy prioritizing enforcement against certain unauthorized flavored e -cigarette products that appeal to children and youth; and WHEREAS, there have been numerous scientific studies regarding the detrimental effects of e -cigarettes to public health; and WHEREAS, the City Council believes that it is in the best interest of the citizens of the City to prohibit the use of electronic cigarettes in public places; and WHEREAS, the businesses have requested that the city allow smoking in areas of places of employment such as welding bays and other spaces that are only partially enclosed; and WHEREAS, City Council finds that a balance between the interests of public health and businesses with such semi -enclosed areas can be best achieved through a variance procedure for Sec. 7.03.004, "Prohibition in enclosed places of employment:" NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS: Page 1 of 6 Section 1. The facts and recitations set forth in the preamble of this Ordinance are hereby found to be true and correct. Section 2. That Section 7.03.001, "Definitions" of Chapter 7, Article 7.03, "Smoking" of the Paris Code of Ordinances is hereby amended to add the following definitions, to be inserted in their appropriate alphabetical order: "Electronic cigarette means or refers to an electronic device, including a device that may be recharged and the components of the device, that converts liquid nicotine into a gas or vapor intended to be inhaled or otherwise orally used by a person and is generally described as a device composed of a mouthpiece, a heating element or atomizer, a battery, and electronic circuits that produce gas or vapor derived from liquid nicotine and other substances which has the effect of simulating smoking. The term includes such devices, regardless of the details of the appearance or marketed name, generally manufactured to resemble cigarettes, cigars, pipes, or other smoking devices. Electronic cigarettes are also variously known as "e -cigarettes," "e-cigs," "electronic vapors," "e -vapors," "vaping," and other similar names." "Liquid nicotine means any liquid product composed of nicotine, either in whole or in part, propylene glycol, or similar substances and manufactured for use in an e - cigarette." "Semi -enclosed area means an enclosed area in which at least one (1) wall is a retractable divider, garage door, or other physical barrier, whether temporary or permanent, and in which the retractable divider, garage door, or other physical barrier is open to the outside air thus allowing ventilation into the area. The term does not include an enclosed area with open windows." Section 3. That Chapter 7.03, Section 7.03.002, "Prohibition in city -owned buildings and facilities," shall be amended to read: "Smoking and the use of electronic cigarettes .Mwith mmmor without liquid nicotine i -s are prohibited inside all city buildings and facilities, and in all areas located within thirty (30) feet of any entrance to the building or facility, operable windows, air intake ducts or ventilation systems." Section 4. That the first sentence of Chapter 7.03, Section 7.03.003, "Prohibition in enclosed public places," shall be amended to read: "Smoking and the use .of_electronicciarettes..with or without li,luid nicotine shall be prohibited in all enclosed public places within the city, including but not limited to the following places:" The remainder of said Section 7.03.003 shall remain the same. Page 2 of 6 Section 5. That Chapter 7.03 of the Code of Ordinances shall be amended by adding a new Section 7.03.004.1, "Variance procedure for semi -enclosed places of employment," to read as follows: "Sec. 7.03.004.1 Variance procedure for semi -enclosed areas in places of employment "(a) This section applies only to semi -enclosed areas in places of employment as defined herein. "(b) An owner of a business may seek a variance from the prohibition set forth in Sec. 7.03.004 for semi -enclosed areas on its premises. To seek such a variance, the owner shall submit an application to the Department of Planning and Community Development. Said application must contain the following information: "(1) The name, address, telephone number, contact person, and ownership information for the business. "(2) The square footage of the semi -enclosed area for which the variance is sought. "(3) The general nature of the business and the activities to be conducted in the semi -enclosed area. "(4) The approximate square footage of the semi -enclosed area or areas for which the variance is sought. "(5) The approximate square footage of the proposed open area or areas in relation to the enclosed portion of the area or areas. "(6) The number of employees to be working in the semi -enclosed area or areas for which the variance is sought. The application shall state the number of employees in each separate semi -enclosed area separately. "(7) Whether members of the public generally have access to the semi - enclosed area. "(8) The number of retractable dividers, garage doors, or other moveable physical barriers in the semi -enclosed area which when open allow ventilation of outside air. "(9) Photographs of the semi -enclosed area with the barriers open and with the barriers closed. Page 3 of 6 "'10 A :)etition rec uestin l the variance signed by the majority of the number of employees disclosed under subsection (bj (6) for each semi - enclosed area for which a variance is souht. "(11) The application must be signed b the dant or business mana,.ger and the human resources director of business. If the mana _er and the human resources director are the same l)erson, that shall be noted on the alaplication. "The city may reject an application for incompleteness. The city council will, not consider an incomplete,,,al plication. "(c) A variance under this section may be granted by the city council at its discretion after a public hearing on the application for which notice has been published in the city's newspaper of record and at which testimony both for and against the variance will be taken. The city council may consider the following factors among others in determining whether to grant a variance: "(1) The number of employees potentially affected by the variance. "(2) The number of retractable walls or barriers which will be left open during times at which smoking will be allowed. "(3) The ratio of wall area to be open to the air to the walls that will remain enclosing the space. "(4) Whether members of the public generally have access to the semi - enclosed area. "(5) Testimony for and against the variance. "(6) The approximate square footage of the semi -enclosed area the subject of the proposed variance. "(7) Any matters contained in the application. "(d) Prior to the public hearing on the proposed variance, the applicant shall post the following notice in a conspicuous place in the semi -enclosed area the subject of said variance: "ATTENTION: [Name of business] has filed an application with the City Council of the City of Paris, Texas for a variance of the prohibition against smoking and the use of electronic cigarettes for the following semi -enclosed area: [Describe semi -enclosed area]. The City Council will hold a public hearing on the proposed variance at 5:30 p.m. on Monday, [date] in the City Council Chambers at 107 E. Kaufman St. at Page 4 of 6 which you may speak for or against the variance. If granted, the variance will allow smoking and the use of electronic cigarettes in the specified semi -enclosed area. "Said notice shall be in a typeface and type size that are easily readable and shall be posted so as to give reasonable notice to employees of the public hearing. "(e) A variance granted under this section shall be effective for a period of three (3) years and after it is granted by the city council, and the business may apply for renewal variances of three (3) years thereafter. "(f) Upon denial of a variance under this section, a business may not reapply for a variance for a period of one (1) year from the date of denial. "(g) It shall be unlawful to smoke or use an electronic cigarette, or to allow smoking or the use of an e -cigarette in a semi -enclosed area in the absence of a variance granted under this section, or to smoke or use an electronic cigarette, or to allow smoking or the use of an e -cigarette in a semi -enclosed area in which at least one wall is open to the outside air. "(h) The decision of the city council on an application for variance under this section is final and is not appealable." Section 6. That the first sentence of Chapter 7.03, Section 7.03.006, "Prohibition in outdoor public places," shall be amended to read: "Smoking and the use of electronic cigarettesmwith or without liquid nicotine shall be prohibited in the following outdoor places:" The remainder of said Section 7.03.003 shall remain the same. Section 7. That all provisions of the ordinances of the City of Paris, Texas in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Paris, Texas not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 8. That the repeal of any ordinance or part of ordinances affected by the enactment of this ordinance shall not be construed as abandoning any action now pending under or by virtue of such ordinance or as discontinuing, abating, modifying, or altering any penalty accruing or to accrue, or as affecting any rights of the municipality under any section or provisions of any ordinance at the time of passage of this ordinance. Section 9. That any person violating any provision of this ordinance shall be guilty of a Misdemeanor, and upon conviction, shall be subject to a fine in accordance with provisions of Sec. 1-6 of Chapter One of the City of Paris Code of Ordinances, and each and Page 5 of 6 every day's continuance of any violation of the above -enumerated sections shall constitute and be deemed a separate offense. Section 10. That it is the intention of the City Council of the City of Paris that this ordinance and every provision hereof, shall be considered severable, and the invalidity or partial invalidity of any section, clause, or provisions of this ordinance shall not affect the validity of any other portion of this ordinance. Section 11. That this ordinance shall become effective from and after its passage and publication as required by law. PASSED AND ADOPTED this 27th day of June, 2022. Paula Portugal, Mayor ATTEST: Janice Ellis, City Clerk APPROVED AS TO FORM: Stephanie H. Harris, City Attorney Page 6 of 6