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:
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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.
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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.
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"'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
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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
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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
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