002-07 - Ordinance - Repealing Chapter 9.44 and Replacing with Chapter 9.44 Smoking Prohibited in Public Places and EmploWHEREAS, in November 2005 the citizens of the state of Washington passed Initiative
901, which prohibits smoking in public places and places of employment; and
WHEREAS, Initiative 901 has been codified in Chapter 70.160 RCW, the "Washington
clean indoor air act"; and
WHEREAS, the City of Port Orchard desires to adopt the provisions of Chapter 70.160
RCW in order that the requirements of said statute may be enforced in Port Orchard Municipal
Court; now, therefore,
TAE CIY'T COINCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS
SECTION 1. Repealer. Port Orchard Municipal Code Chapter 9.44 entitled "Smokin�#
Prohibited in City Workplaces" is hereby repealed in its entirety.
SECTION 2. A new Port Orchard Municipal Code Chapter 9.44 entitled "Smoking Prohibited
in Public Places and Places of Employment" is adopted to read as follows:
Sections:
9.44.010 Purpose.
9.44.020 Definitions.
9.44.030 Smoking prohibited in public places or places of
employment.
9.44.040 Owners, lessees to post signs prohibiting smoking.
9.44.050 Intent of chapter as applied to certain private workplaces.
9.44.060 Intentional violation of chapter ® Removing, defacing, or
destroying required sign — Fine ® Notice of infraction —
Exceptions — Violations of POMC 9.44.040 — Fine —
Enforcement.
Ordinance No.002-07
Page 2 of 5
9.44.070 Smoking prohibited within twenty-five feet of public
places or places of employment — Application to modify
presumptively reasonable minimum distance,
9.44.080 Fines payable to city.
9.44.090 Private actions.
9.44.010 Purpose.
Exposure to second-hand smoke is known to cause cancer in
humans. Second-hand smoke is a known cause of other diseases
including pneumonia, asthma, bronchitis, and heart disease. Citizens
are often exposed to second-hand smoke in the workplace, and are
likely to develop chronic, potentially fatal diseases as a result of such
exposure. In order to protect the health and welfare of all citizens,
including workers in their places of employment, it is necessary to
prohibit smoking in public places and workplaces.
9.44.020 Definitions.
As used in this chapter, the following terms have the meanings
indicated unless the context clearly indicates otherwise.
(1) "Smoke" or "smoking" means the carrying or smoking of any
kind of lighted pipe, cigar, cigarette, or any other lighted smoking
equipment.
(2) "Public place" means that portion of any building or vehicle
used by and open to the public, regardless of whether the building or
vehicle is owned in whole or in part by private persons or entities, the
state of Washington, or other public entity, and regardless of
whether a fee is charged for admission, and includes a presumptively
reasonable minimum distance, as set forth in POMC 9.44.070, of
twenty-five feet from entrances, exits, windows that open, and
ventilation intakes that serve an enclosed area where smoking is
prohibited. A public place does not include a private residence unless
the private residence is used to provide licensed child care, foster
care, adult care, or other similar social service care on the premises.
Public places include, but are not limited to: Schools, elevators,
public conveyances or transportation facilities, museums, concert
halls, theaters, auditoriums, exhibition halls, indoor sports arenas,
hospitals, nursing homes, health care facilities or clinics, enclosed
shopping centers, retail stores, retail service establishments, financial
institutions, educational facilities, ticket areas, public hearing
facilities, state legislative chambers and immediately adjacent
hallways, public restrooms, libraries, restaurants, waiting areas,
lobbies, bars, taverns, bowling alleys, skating rinks, casinos,
reception areas, and no less than seventy-five percent of the sleeping
quarters within a hotel or motel that are rented to guests. A public
place does not include a private residence. This chapter is not
intended to restrict smoking in private facilities which are occasionally
Ordinance No,002-07
Page 3 of 5
open to the public except upon the occasions when the facility is
open to the public.
(3) "Place of employment" means any area under the control of a
public or private employer which employees are required to pass
through during the course of employment, including, but not limited
to: Entrances and exits to the places of employment, and including a
presumptively reasonable minimum distance, as set forth in POMC
9.44.070, of twenty-five feet from entrances, exits, windows that
open, and ventilation intakes that serve an enclosed area where
smoking is prohibited; work areas; restrooms; conference and
classrooms; break rooms and cafeterias; and other common areas, A
private residence or home -based business, unless used to provide
licensed child care, foster care, adult care, or other similar social
service care on the premises, is not a place of employment,
9.44.030 Smoking prohibited
employment.
No person may smoke in a
•
WTIM,
9.44.040 Owners, lessees to post signs prohibiting smoking.
Owners, or in the case of a leased or rented space the lessee or
other person in charge, of a place regulated under this chapter shall
prohibit smoking in public places and places of employment and shall
post signs prohibiting smoking as appropriate under this chapter.
Signs shall be posted conspicuously at each building entrance. In the
case of retail stores and retail service establishments, signs shall be
posted conspicuously at each entrance and in prominent locations
throughout the place,
9.44.050 Intent of chapter as applied to certain private
workplaces.
This chapter is not intended to regulate smoking in a private
enclosed workplace, within a public place, even though such
workplace may be visited by nonsmokers, excepting places in which
smoking is prohibited by the chief of the Washington state patrol,
through the director of fire protection, or by other law, ordinance, or
regulation.
9.44.060 Intentional violation of chapter — Removing,
defacing, or destroying required sign — Fine —
Notice of infraction — Exceptions.
(1) Any person intentionally violating this chapter by smoking in a
public place or place of employment, or any person removing,
defacing, or destroying a sign required by this chapter, is subject to a
civil fine of up to one hundred dollars. Any person passing by or
Ordinance No.002-07
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through a public place while on a public sidewalk or public right of
way has not intentionally violated this chapter. Local law enforcement
agencies shall enforce this section by issuing a notice of infraction to
be assessed in the same manner as traffic infractions. The provisions
contained in chapter 46.63 RCW for the disposition of traffic
infractions apply to the disposition of infractions for violation of this
subsection except as follows:
(a) The provisions -in chapter 46.63 RCW relating to the
provision of records to the department of licensing in accordance with
RCW 46.20.270 are not applicable to this chapter; and
(b) The provisions in chapter 46.63 RCW relating to the
imposition of sanctions against a person's driver's license or vehicle
license are not applicable to this chapter.
The form for the notice of infraction for a violation of this
subsection shall be prescribed by rule of the Supreme Court.
(2) When violations of POMC 9.44.040 occur, a warning shall first
be given to the owner or other person in charge. Any subsequent
violation is subject to a civil fine of up to one hundred dollars. Each
day upon which a violation occurs or is permitted to continue
constitutes a separate violation.
(3) As provided in RCW 70.160.070, the Kitsap County Health
District shall enforce POMC 9.44.040 regarding the duties of owners
or person in control of public places and places of employment by
either of the following actions:
(a) Serving notice requiring the correction of any violation; or
(b) Calling upon the city attorney or Kitsap County prosecutor
or Kitsap County Health District attorney to maintain an action for an
injunction to enforce POMC 9.44.040, to correct a violation, and to
assess and recover a civil penalty for the violation.
9.44.070 Smoking prohibited within twenty-five feet of
public places or places of employment —
Application to modify presumptively reasonable
minimum distance.
Smoking is prohibited within a presumptively reasonable
minimum distance of twenty-five feet from entrances, exits, windows
that open, and ventilation intakes that serve an enclosed area where
smoking is prohibited so as to ensure that tobacco smoke does not
enter the area through entrances, exits, open windows, or other
means. Owners, operators, managers, employers, or other persons
who own or control a public place or place of employment may seek
to rebut the presumption that twenty-five feet is a reasonable
minimum distance by making application to the director of the local
health department or district in which the public place or place of
employment is located. The presumption will be rebutted if the
applicant can show by clear and convincing evidence that, given the
Ordinance No.002-07
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unique circumstances presented by the location of entrances, exits,
windows that open, ventilation intakes, or other factors, smoke will
not infiltrate or reach the entrances, exits, open windows, or
ventilation intakes or enter into such public place or place of
employment and, therefore, the public health and safety will be
adequately protected by a lesser distance,
9.44.080 Fines payable to city.
All fines or forfeitures collected upon enforcement of this chapter
shall be paid into the general fund of the city of Port Orchard.
9.44.090 Private actions.
(1) This chapter shall not be construed to prohibit private
persons or organizations from bringing an action to enjoin violations
of this chapter, nor shall it be construed to limit other actions in any
way.
(2) In undertaking enforcement of this chapter, the city of Port
Orchard is assuming and undertaking only to promote the general
welfare. The city of Port Orchard is not assuming, nor is it imposing
on city personnel, an obligation for breach of which the city or its
personnel are liable in money damages.
SECTION 3. This ordinance shall be in full force and effect five (5) days after posting and
publication, as required by law. A summary of this Ordinance may be published in lieu of the entire
ordinance, as authorized by State Law.
PASSED by the City Council of the City of Port OrQard, APPROVED by the Mayor and attested by
the Clerk in authentication of such passage thisPL—day of to 2007.
ATTEST:
Michelle Merlino, City Clerk
APPROVED AS TO FORM:
(JArn ty
t/
KIM E. ABEL, MAYOR
W=�
Rick Wy'att,Council -Member
IVIAT
ORDINANCE
The following isasummary of an Ordinance approvedbythe Port Orchard City Council at their regular
Council meeting held March 26, 2007.
AN ORDINANCE OF THE CITY OF PORT ORCHARD,WASHINGTON, REPEALING
PORT ORCHARD MUNICIPAL CODE CHAPTER 9.44 ENTITLED "SMOKING
PROHIBITED IN CITY WORKPLACES" AND REPLACING IT WITH /\ NEW
CHAPTER 9'44 ENTITILED "SMOKING PROHIBITED IN PUBLIC PLACES AND
PLACES <]FEMPLOYMENT"
Copies of Ordinance No. 002-07are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request d statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 002-07vvi|| be
provided at nominal charge.
Ci cfPort Orchard
MicheUeMadino
City Clerk
Publish: Port Orchard Inde