ORDINANCE NO. 080073

Calling for submission to the voters of Kansas City, at a special election to be held Tuesday, April 8, 2008, a question amending Chapter 34, Code of Ordinances, by repealing Article XII, Smoking in public places, consisting of Sections 34-471 through 34-481 and enacting in lieu thereof a new Article XII entitled "Prohibitions on smoking in enclosed places of employment and public places and public sidewalks abutting acute care hospital property lines," consisting of Sections 34-471 through 34-481, prohibiting smoking in enclosed places of employment, enclosed public places and public sidewalks abutting acute care hospital property lines, while allowing it in casino gaming areas until surrounding casinos are covered by laws banning smoking; establishing penalties for noncompliance; authorizing and directing the City Clerk to notify the responsible election authorities of this election; and recognizing an emergency.

 

WHEREAS, the City Clerk certified and sent to the City Council Ordinance No. 080036, initiated by petitioners, prohibiting smoking in enclosed places of employment and public places and public sidewalks abutting acute care hospital property lines; and

 

WHEREAS, a Committee Substitute for Ordinance No. 080036, as amended, made changes to the ordinance submitted by the committee of petitioners and was passed on January 10, 2008 ; and

 

WHEREAS, on January 14, 2008, the petition of commissioners exercised its rights pursuant to City Charter Section 702 and certified that it is requiring the City Council to submit to the electors its proposed ordinance as originally submitted; and

 

WHEREAS, this ordinance reflects the original language submitted by the petitioners and submits it to a vote before the people at the next election pursuant to City Charter Section 703; NOW THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. Special election called. That a special election is called and shall be held on Tuesday, April 8, 2008, for the purpose of submitting to the voters the question of amending Chapter 34, Code of Ordinances to prohibit smoking in enclosed places of employment, enclosed public places and public sidewalks abutting acute care hospital property lines.

 

Section 2. Delivery of Ordinance by City Clerk to Election Authorities. That the City Clerk shall deliver certified copies of this ordinance and notice of election to the Board of Election Commissioners of Kansas City, Missouri, Board of Election Commissioners of Clay County, Board of Election Commissioners of Platte County, and the County Clerk of Cass County, which shall be the authority of the respective election authorities of the City to submit these amendments to the electors of Kansas City as herein provided and to give public notice thereof as provided by law within one business day of the effective date of this ordinance.

 

Section 3. Election Notice. That the notice of election shall read as follows:

 

NOTICE OF ELECTION

CITY OF KANSAS CITY, MISSOURI

 

Notice is hereby given that the City of Kansas City has called an election to be held in said City on Tuesday, April 8, 2008, at which election all qualified voters residing within the City of Kansas City, Missouri will be given the opportunity to vote.

 

The official ballot will be in substantially the following form:

 

OFFICIAL BALLOT

CITY OF KANSAS CITY

 

QUESTION _____

 

Shall the City of Kansas City prohibit smoking in enclosed places of employment, enclosed public places and on public sidewalks abutting acute care hospitals, while allowing it in casino gaming areas until all casinos located in the Missouri counties of Jackson, Platte and Clay, and the Kansas counties of Johnson and Wyandotte are obligated by ordinance, statute or law to prohibit smoking within the casino areas where gambling games are allowed, as set forth in Ordinance No. 08___, for the purpose of promoting public health by decreasing citizen's exposure to secondhand smoke and creating smoke free environments for workers and citizens through regulation in the work place and all public places?

 

_____ YES _____ NO

 

[Instructions to voters will be supplied by the election authorities]

 

A full and complete copy of the ordinance submitting the above proposition to the electorate is on file in the office of the City Clerk of Kansas City, Missouri where it is open for inspection and copying.

 

The polling places for the election will be [insert list of polling places in last publication only].

I hereby certify that the foregoing is the legal notice to be published pursuant to Section 115.127, RSMo.

 

Given under my hand and the official seal of the City of Kansas City, Missouri, this _________ day of _______, 2008.

 

(SEAL) _______________________________

MILLIE CROSSLAND

City Clerk, City of Kansas City, Missouri

 

Before me, a notary public, personally appeared Millie Crossland, to me known to be the City Clerk of the City of Kansas City, Missouri, and the person who acknowledged to me that she executed the same for the purposes therein stated.

 

 

_________________________________

Notary Public

 

My commission expires:___________________________

 

Section 4. Amendments to become part of the Code of Ordinances of Kansas City. If a majority of the voters favors the ballot question, the amendment to Article XII Code of Ordinances of the City of Kansas City, Missouri repealing Article XII, Smoking in public places, consisting of Sections 34-471 through 34-481 and enacting in lieu thereof a new Article XII entitled "Prohibitions on smoking in enclosed places of employment and public places and public sidewalks abutting acute care hospital property lines", shall become effective sixty (60) days after passage of a simple majority of voters and if the number of votes exceeds the number of votes cast in favor of the ballot question approving Committee Substitute for Ordinance No. 080036, As Amended, which new Article XII shall read as follows: 

 

ARTICLE XII. SMOKING PROHIBITED IN ENCLOSED PLACES OF
EMPLOYMENT AND PUBLIC PLACES AND PUBLIC SIDEWALKS ABUTTING ACUTE CARE HOSPITALS

Sec. 34-471. Purpose.

It is the purpose of this Article that the City promotes public health by decreasing citizens exposure to secondhand smoke and creates smoke free environments for workers and citizens through regulation in the work place and all public places.

 

Sec. 34-472. Definitions.

The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

 

Bar means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.

 

Acute care hospital means hospitals licensed as such under Chapter 197 of the Revised Statutes of Missouri (RSMo).

 

Casino gaming area means an excursion gambling boat as defined pursuant to 313.800.1(8) RSMo and shall include the paths of ingress and egress immediately adjacent to and contiguous with the excursion gambling boat.

 

City Attorney means the City Attorney for the City of Kansas City, Missouri or his or her designee.

Director of Health means the Director of Health of the City of Kansas City, Missouri or his or her designee.

Employee means any person who performs services for an employer, with or without compensation.

Employer means a person, partnership, association, corporation, trust, or other organized group of individuals, including the City or any agency thereof, which utilizes the services of one (1) or more employees.

Enclosed means a space bound by walls (with or without windows) continuous from the floor to the ceiling and enclosed by doors, including, but not limited to, offices, rooms, all space therein screened by partitions, which do not extend to the ceiling or are not solid, "office landscaping" or similar structures and hallways.

Permanently Designated means a hotel or motel room may be designated as a smoking room only one time a year.

Place of Employment means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference rooms and classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a childcare, adult day care or health care facility.

Public Place means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, educational facilities, health facilities, laundering facilities, public transportation facilities, reception areas, production and marketing establishments, retail service establishments, retail stores, theaters, and waiting rooms. A private residence is not a "public place."

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 at no cost or 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 an attached bar.

Service Line means any indoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

 

Smoking means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe or other tobacco product.

 

Sports Arena means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice skating rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

Sec. 34-473. Prohibition of smoking in enclosed places of employment and all enclosed public places; Prohibition of smoking on sidewalks abutting hospitals.

(a)                The possession of lighted smoking materials in any form, including but not limited to, the possession of lighted cigarettes, cigars, pipes or other tobacco products, shall be prohibited in all enclosed places of employment within the City.

(b) The possession of lighted smoking materials in any form, including but not limited to, the possession of lighted cigarettes, cigars, pipes or other tobacco products, shall be prohibited in all enclosed public places within the City, including but not limited to the following places:

(1) Any vehicle of public transportation, including but not limited to buses, limousines for hire and taxicabs;

(2) Elevators;

(3) Restrooms;

(4) Libraries, educational facilities, childcare and adult day care facilities, museums, auditoriums, aquariums and art galleries;

(5) Any health care facility, health clinic or ambulatory care facilities, including but not limited to laboratories associated with the rendition of health care treatment, hospitals, nursing homes, doctors' offices and dentists' offices;

(6) Any indoor place of entertainment or recreation, including but not limited to gymnasiums, theaters, concert halls, bingo halls, billiard halls, betting establishments, bowling alleys, arenas and swimming pools;

(7) Service Lines;

(8) Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical recital, or other similar performance;

(9) Shopping malls;

(10) Sports arenas, including enclosed places in outdoor arenas;

(11) Bars;

(12) Restaurants;

(13) Convention facilities;

(14) All public areas and waiting rooms of public transportation facilities, including but not limited to bus and airport facilities;

(15) Any other area used by the public or serving as a place of work, including open office landscaping;

(16) Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including, but not limited to joint committees, or agencies of the City or any political subdivision of the state during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City;

(17) All enclosed facilities owned by the City; and

(18) Rooms in which meetings or hearings open to the public are held, except where such rooms are in a private residence.

(c) Possession of lighted smoking materials in any form, including but not limited to the possession of lighted cigarettes, cigars, pipes or other tobacco products, is prohibited on public sidewalks abutting acute care hospital property lines.

(d) No one shall possess lighted smoking materials in any form, including but not limited to lighted cigarettes, cigars, pipes or other tobacco products in a manner that impedes entrance to or exit from a building where smoking is prohibited pursuant to this Section.

 

(e)                It shall be unlawful for any person to violate the provisions of this section.

 

Sec. 34-474. Responsibilities of proprietors, owners and managers.

 

(a) A person having control of a place listed in Section 34-473 shall not knowingly permit, cause, suffer or allow any person to violate the provisions of Section 34-473 in that place. It shall be an affirmative defense to an alleged violation of this subsection that the person having control of a place has asked that the lighted cigarette, cigar, pipe or other tobacco product be extinguished and asked the person to leave the establishment if that person has failed or refused to extinguish the lighted cigarette, cigar, pipe or other tobacco products.

 

(b)               A person having control of a place shall clearly and conspicuously post "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) near all entrances where smoking is prohibited by this Article. Such signage shall consist of letters not less than one inch in height.

(c)                It shall be the responsibility of employers to provide smoke-free workplaces for all employees.

(d)               Each employer having any enclosed place of employment located within the City shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements:

Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.

(e)                The smoking policy shall be communicated to all employees within four (4) weeks of the adoption of this Ordinance.

(f)                 All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

Sec. 34-475. Where smoking is not regulated.

Notwithstanding any other provision of this Ordinance to the contrary, the following shall not be subject to the smoking restrictions of this Ordinance:

(a)                Private residences, not serving as enclosed places of employment or enclosed public places;

(b)               Twenty-five percent (25%) of hotel and motel rooms may be permanently designated as smoking rooms or a higher percentage adjusted by the hotel or motel when on a given date it has a seventy-five percent (75%) or greater occupancy rate due to the booking of guests for conventions or meetings and needed to meet the demands of the convention or meeting, provided the hotel or motel cleans those added rooms in a manner sufficient to remove the odor and particulate residue of smoking from those rooms before they are again occupied as non-smoking rooms.

(c) Any location where this ordinance is not yet in effect pursuant to Section 34-480.

Sec. 34-476. Penalty for violation of this Article.

(a) A person who smokes in an area where smoking is prohibited by the provisions of this Article shall be guilty of an ordinance violation, punishable by a fine not exceeding fifty dollars ($50.00).

(b) A person having control of a public place or place of employment and who fails to comply with the provisions of this Article shall be guilty of an ordinance violation, punishable by:

(1)               A fine not exceeding one hundred dollars ($100) for a first violation.

(2)               A fine not exceeding two hundred dollars ($200) for a second violation within a one (1) year period.

(3)               A fine not exceeding five hundred dollars ($500) for a third or subsequent violations within a one (1) year period.

(4)               Each day on which a violation of this Article occurs shall be a separate and distinct violation

Sec. 34-477. Public education.

The Director of Health shall engage in a continuing program to inform and to educate the public regarding the health consequences of smoking, including the adverse health consequences of peoples' exposure to secondhand smoke, shall clarify the purpose of this Article to citizens affected by it, and shall guide owners, operators and managers in their compliance.

Sec. 34-478. Other applicable laws.

This Article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

Sec. 34-479. Construction.

This Article shall be liberally construed so as to further its purposes. The provisions of this ordinance are severable. If any provision or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

Sec. 34-480. Effective dates.

(a)                Except as provided below, this Article will become effective 60 days after passage of a simple majority of voters and if the number of votes exceeds the number of votes cast in favor of the ballot question approving Committee Substitute for Ordinance No. 080036, As Amended.

(b) Casino gaming areas shall be exempt from this Article until all casinos located in the Missouri counties of Jackson, Platte and Clay, and the Kansas counties of Johnson and Wyandotte (the Relevant Counties) are obligated by ordinance, statute or law to prohibit smoking within the casino areas where gambling games are allowed.

(1) Determination of effective date. To determine when casino gaming areas are no longer exempt from this Article as described above:

 

i. The City Clerk with the advice of the Director of Health will maintain a library of smoking ordinances from all cities located in the Relevant Counties.

ii. When smoking within casino gaming areas has been banned in those jurisdictions in which casinos are located in the Relevant Counties, the City Clerk shall provide for public notice through the City's internet site, news releases and a communication to the City Council.

 

iii. Such notice shall state that this Article will apply to casino gaming areas after sixty (60) days from the date of the notice.

Sec. 34-481. Enforcement of Article.

(a)                The authority to administer the provisions of this article is vested in the Director of Health and his or her duly authorized representative(s).

(b)               Whenever the need arises, the Director of Health may call upon the fire and police departments and other departments of the City to aid in the enforcement of the provisions of this Article.

(c)                Notice of the provisions of this Article shall be given to all applicants for a business license in the City of Kansas City Missouri.

(d)               Any citizen who desires to register a complaint under this Article may initiate enforcement with the health department.

 

Sec.34-482-34-510 reserved.

Section 5. EMERGENCY RECOGNIZED. This ordinance, providing for the submission of Code amendments to the people of Kansas City, Missouri, is hereby recognized to be an emergency measure within the meaning of Section 503 of the Charter, and as such shall become effective immediately upon its passage.

____________________________________________________

Approved as to form and legality:

 

 

_________________________________

Joseph A. Guarino

Assistant City Attorney