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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 Port Orchard Municipal Code Chapter 9.44 entitled "Smokin�# Prohibited in City Workplaces" is hereby repealed in its entirety.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 Page 4 of 5 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 Page 5 of 5 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