02-10077 Public Health(Published in the Salina Journal on May/4 2002)
(Effective July?, 2002)
ComoWeik.Un
ORDINANCE NUMBER 02-10077
AN ORDINANCE CREATING CHAPTER 30.5 "PUBLIC HEALTH" TO THE
SALINA CODE AND ADDING ARTICLE I TO CHAPTER 30.5 SMOKING IN
RESTAURANTS.
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
Section 1. Findings.
(a) Smoking areas may be designated pursuant to K.S.A. 21-4010 by proprietors or other
persons in charge of public places, except those places where smoking is prohibited by law.
(b) There exists a substantial body of scientific research demonstrating that smoking and the
effects of second hand smoke pose significant health hazards to persons who are in the presence of
smokers.
(c) Kansas statutory law regarding smoking in public places addresses at K.S.A. 21-4013
the potential for city or county regulation of smoking within its boundaries, so long as such
regulation is at least as stringent as state law.
Section 2. That Chapter 30.5 "Public Health" and Article I pertaining to Smoking in
Restaurants is hereby added to the Salina Code to read as follows:
"CHAPTER 30.5 PUBLIC HEALTH
Article I. Smoking in Restaurants.
Sec. 30.5-1. Public Policy.
It shall be the public policy of the city to promote the health and welfare of its
citizens and the traveling public by increasing substantially the opportunity to
enjoy public dining without the health hazard posed by second-hand smoke.
Sec. 30.5-2. Definitions.
For the purpose of this article, the following words and terms as used herein are
defined to mean the following:
(1) Accessory bar means a place within a restaurant for the incidental
service of alcoholic beverages and associated snacks, appetizers, and other
products for consumption on the premises. Full restaurant food service shall
not be available in an accessory bar.
(2) Bingo Hall means any room, hall, building, enclosure or outdoor
area used for the management, operation or conduct of a game of bingo by
any nonprofit organization holding a license to manage, operate or conduct
games of bingo pursuant to Kansas law and in which food service for
consumption on the premises is incidental to the primary activity of the
establishment.
(3) Bowling Center/Alley means a place of business open to the public
which offers the use of not less than twelve full scale bowling lanes that are
each equipped with operable automatic pin setting apparatus and in which
food service for consumption on the premises is incidental to the primary
activity of the establishment.
(4) Class A club means a premises so licensed by the state of Kansas
which is owned or leased by a corporation, partnership, business trust or
association and which is operated thereby as a bona fide nonprofit social,
fraternal or war veterans' club, as determined by the director, for the
exclusive use of the corporate stockholders, partners, trust beneficiaries or
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associates (referred to as members) and their families and guests
accompanying them.
(5) Class B club means a premises so licensed by the state of Kansas
operated for profit by a corporation, partnership or individual, to which
members of such club may resort for the consumption of food or alcoholic
beverages and for entertainment.
(6) Drinking Establishment means premises so licensed by the state of
Kansas which may be open to the general public, where alcoholic liquor by
the individual drink is sold.
(7) Hotel/motel non -retail dining area means that area in a hotel or
motel designated for serving and consumption of non -retail
"complementary" food or beverages served by the hotel or motel to those
persons renting a hotel or motel room.
(8) Licensed Club means a class A or class B club with a valid license
issued by the state of Kansas.
(9) Other person in charge means the agent of the proprietor authorized
to perform administrative direction to, and general supervision of, the
activities within a restaurant at any given time.
(10) Physically separated means separated from the smoke-free
restaurant area by continuous floor -to -ceiling walls which are interrupted
only by doors which are continuously closed other than when a person is
actively entering or exiting the smoke-free area.
(11) Private dining or banquet room means an entire restaurant, room or
hall used for a private social function and for which seating arrangements
are in control of the sponsor of the function and not the proprietor or person
in charge of the room or hall.
(12) Proprietor means the party, regardless of whether or not the party is
owner or lessee of the restaurant, who ultimately controls, governs, or
directs the activities within the restaurant. The term does not mean the
owner of the property, unless the owner ultimately controls, governs, or
directs the activities within the restaurant. The term proprietor may apply to
a corporation, partnership or limited liability company as well as to an
individual.
(13) Recreational facility means a place of business open to the public for
the primary purpose of offering for use game tables or other mechanical
forms of entertainment or competition and in which food service for
consumption on the premises is incidental to the primary activity of the
establishment.
(14) Restaurant means a building, structure, enclosure, or any part of a
building, structure, or enclosure with table, booth, or counter seating for
eleven (11) or more persons and used as, maintained as, advertised as, or held
out to be an operation which prepares, serves or otherwise provides for sale
of food and beverages for consumption on the premises.
(15) Separate designated smoking area means an indoor area where
smoking is allowed, physically separated from the required smoke-free
restaurant areas, and which includes physical separation and appropriate
ventilation so that smoke from those areas does not drift, permeate, or re-
circulate into any smoke-free restaurant areas.
(16) Smoking means the:
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a. Carrying or placing of a lighted cigarette, lighted cigar, or lighted
pipe or any other lighted smoking equipment in one's mouth for
the purpose of inhaling and exhaling smoke;
b. Placing of a lighted cigarette, lighted cigar, or lighted pipe or any
other lighted smoking equipment in an ashtray or other receptacle
and allowing smoke to diffuse in the air; or
c. Carrying or placing of a lighted cigarette, lighted cigar, or lighted
pipe or any other lighted smoking equipment in one's hands or
any appendage or devices and allowing smoke to diffuse in the
air.
Sec. 30.5-3. Regulation of Smoking.
Smoking shall not be permitted in a restaurant, except as follows:
(1) Outdoor or sidewalk seating. Smoking may be permitted in the
outdoor or sidewalk seating portions of a restaurant if the outdoor
or sidewalk seating area and the indoor smoke-free restaurant area
are physically separated.
(2) Time of day exception. The provisions of this ordinance shall not
apply to a restaurant during that time between 9:00 p.m. and 5:00
a.m. During that time, a proprietor of a restaurant may designate a
smoking area in accordance with K.S.A. 21-4009 et seq.
Sec. 30.5-4. Restaurant Located in a Larger Facility.
When a restaurant is located within a facility larger than the area used for the
restaurant, no person shall smoke in the entire facility unless the proprietor or
other person in charge of the facility has designated a smoking area which
qualifies as a separate designated smoking area as defined by this ordinance.
Restaurants located within a larger facility include, without limitation, restaurants
in truck stops, hotels, retail establishments, and convention or meeting facilities.
Sec. 30.5-5. Requirements Relating to Physical Separation and Ventilation.
The city building official is authorized to make reasonable requirements and
determinations consistent with the building code and this ordinance with regard to
physical separation and appropriate ventilation in any case where those
requirements need to be applied to smoke-free restaurant areas adjacent or
connected to areas in which smoking is permitted.
Sec. 30.5-6. Exemptions.
The prohibition against smoking in restaurants set forth in this ordinance shall not
apply to a:
(1) Licensed club;
(2) Bowling center/alley;
(3) Bingo hall;
(4) Recreational facility;
(5) Hotel/motel non -retail dining area; or
(6) Private dining or banquet room;
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which, if located within a facility in which a restaurant is also located, must meet
the separation and ventilation requirements of a separate designated smoking area.
Sec. 30-5.7. Waiver for Certain Licensed Drinking Establishments.
(a) Licensed drinking establishments which derive from sales of food for
consumption on the licensed drinking establishment premises not in excess of
30% of its gross receipts from all sales of food and beverages on such premises in
a 12 -month period shall be eligible for a waiver from the requirements of this
ordinance. In order to obtain such a waiver, application shall be made by the
holder of the drinking establishment license verifying by sworn affidavit that the
drinking establishment falls below the maximum food sales ratio. The city may,
at its discretion and from time to time, require from the drinking establishment
licensee copies of reports filed by the licensee with the Kansas Department of
Alcohol and Beverage Control in order to verify licensee's food sales ratio.
(b) Drinking establishment licensees seeking to open a drinking establishment
or substantially change operation of an existing establishment so that it may
operate under the waiver for qualifying licensed drinking establishments shall
provide a sworn affidavit and agreement which shall state that the licensee's
business plan projections indicate sales of food for consumption on the licensed
drinking establishment premises shall not exceed 30% of its gross receipts from
all sales of food and beverages on such premises.
Sec. 30.5-8. Responsibility of Proprietors.
The proprietor or other person in charge of a place governed by this ordinance
shall:
(1) Meet all signage requirements;
(2) Advise any person smoking in an area where smoking is prohibited
that he or she is smoking in violation of city ordinance;
(3) Advise any person who smokes in an area where smoking is
prohibited by this ordinance to refrain from smoking and, if the
person does not refrain from smoking after being asked to do so, shall
ask the person to leave. If the offending person refuses to leave, the
proprietor shall handle the situation consistent with lawful methods
for handling persons acting in a disorderly manner or as a trespasser;
(4) Remove all ashtrays and other smoking paraphernalia from areas
where smoking is prohibited; and
(5) In the case of a restaurant located within a facility larger than the area
used for the restaurant, comply with all physical separation and
ventilation standards to prevent the drifting, permeation, or re-
circulation of smoke from any separate designated smoking area into
the adjacent or connected areas of the restaurant.
Sec. 30.5-9. Penalties.
Violation of the prohibition against smoking in a restaurant set forth in this
ordinance shall be classified as an ordinance cigarette or tobacco infraction and
shall be punishable by a fine in the amount established by state law as the fine for
a cigarette or tobacco infraction (currently $25). Violation of the responsibilities
of proprietors and other persons in charge of a place governed by this ordinance
shall be punishable under the general penalty provisions of Salina Code Section 1-
10.
Sec. 30.5-10. Administrative Regulations.
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Rules and regulations pertaining to signage, extensions of time for compliance -
related construction, or other matters necessary for the implementation of this
ordinance shall be adopted by resolution of the governing body."
Section 3. Effective Date. This ordinance shall be in full force and effect 60 days after its
adoption and publication once in the official city newspaper.
[SEAL]
Attest:
Lieu Ann Nicola, City Clerk
Introduced: April 15, 2002
Passed: May 6, 2002
/r'stin M. Seaton ayor