(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.
(D) Secondhand smoke, which contains 4,000 chemicals, 63 of which cause cancer, is the third leading cause of preventable death in the United States, and the National Cancer Institute determined in 2000 (Monograph # 10) that secondhand smoke is responsible for the early deaths of as many as 65,000 Americans annually; and
(E) The Public Health Services National Toxicology Program has listed secondhand smoke as a known carcinogen (U.S. DHHS, 2000, citing Cal. EPA, 1997), and (2) numerous studies have found that tobacco smoke is a major contributor to indoor air pollution and that breathing secondhand smoke (also known as environmental tobacco smoke)is a cause of disease in healthy nonsmokers, including heart, stroke, respiratory disease, and lung cancer; and
(F) The ills of smoking and secondhand smoke are well documented in all of the independent medical studies and secondhand smoke is particularly hazardous to elderly people, children individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and
(G) (1) the U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to secondhand smoke, (2) the Environmental Protection Agency has determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates of ventilation, (3) air cleaners, which are only capable of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in secondhand smoke, (4) American Society of Heating, Refrigerating and Air conditioning Engineers (ASHRAE) bases its ventilation standards on totally smoke free environments because it cannot determine a safe level of exposure to secondhand smoke, which contains cancer causing chemicals, and ASHRAE acknowledges that the technology does not exist that can remove chemicals from the air that cause cancer; and
(H) (1) a recently promulgated ASHRAE Position Document of Environment Tobacco Smoke concludes that at present, the only means of eliminating health risks associated with indoor exposure is to ban all smoking activity, and (2) ASHRAE further concludes that no current ventilation, air cleaning or other technologies have been demonstrated to control health risks from environmental tobacco smoke exposure in spaces where smoking occurs; and
(I) A significant amount of secondhand smoke exposure occurs in the workplace, and employees who work in smoking permitted businesses suffer a higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and a measurable decrease in lung function; and
(J) Smoke filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates and increased liability claims for diseases related to exposure to secondhand smoke; and
(K) The Ottawa City Commission recognizes that environmental tobacco smoke poses a serious public health hazard; that nonsmokers need protection from environmental tobacco smoke exposure and that regulation of the burning of tobacco in public places and places of employment is imperative in order to protect the public health and welfare of the citizens of the City of Ottawa;
(L) Numerous studies have determined that environmental tobacco smoke (ETS) is a significant source of exposure to toxic air indoor contaminants, causally associated with respiratory illness, including lung cancer, asthma and emphysema; and
(M) There is scientific research linking ETS with heart disease, responsible for an estimated 35,000 coronary heart disease deaths annually among adult nonsmokers in the United States as a result of ETS exposure; and
(N) ETS carcinogens and poisons pose special risk to children, the elderly, food service employees, and individuals with cardiovascular disease and/or impaired respiratory function, including asthmatics and those with obstructive airway disease; and
(O) ETS exposure has been causally associated with developmental, respiratory, carcinogenic and cardiovascular effects, including fetal outcomes such as sudden infant death syndrome.
(P) Tobacco use is the single largest cause of preventable death in Kansas, and according to the CDC’s Tobacco Control State Highlights 2002, tobacco use alone was responsible for an estimated 3,800 deaths in Kansas in 1999, or 16% of the total deaths in Kansas in 1999; and
(Q) The separation of smokers from nonsmokers within the same airspace does not eliminate the exposure of nonsmokers to ETS, given that no safe level of exposure to ETS has been found;
(R) Accordingly the Ottawa City Commission recognizes that ETS poses a serious public health hazard, that nonsmokers need protection from ETS exposure and that therefore, regulation by the Governing Body of the burning of tobacco in public places and places of employment is imperative in order to protect the public health and welfare of the citizens of the City of Ottawa.
The purpose of this article is to:
1. Improve and protect the public’s health by eliminating smoking in eating establishments and public places; and
2. Guarantee the right of nonsmokers to breathe smoke free air; and
3. Recognize that in public spaces the need to breathe smoke free air shall have priority over the choice to smoke.
1. “Access point” is defined as stated in K.S.A. 21-4009 (a);
“Access point” means the area within a ten foot radius outside of any doorway, open window or air intake leading into a building or facility that is not exempted pursuant to subsection (d) of K.S.A. 21-4010, and amendments thereto.
2. “Bar” is defined as stated in K.S.A. 21-4009 (b);
“Bar” means any indoor area that is operated and licensed for the sale and service of alcoholic beverages, including alcoholic liquor as defined in K.S.A. 41-102, and amendments thereto, or cereal malt beverages as defined in K.S.A. 41-2701, and amendments thereto, for on-premises consumption.
3. “Employee” is defined as stated in K.S.A. 21-4009 (c);
“Employee” means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers their services for a nonprofit entity.
4. “Employer” is defined as stated in K.S.A. 21-4009 (d);
“Employer” means any person, partnership, corporation, association or organization, including municipal or nonprofit entities, which employs one or more individual persons.
5. “Enclosed area” is defined as stated in K.S. A. 21-4009 (e);
“Enclosed area” means all space between a floor and ceiling which is enclosed on all sides by solid walls, windows or doorways which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid or similar structures. For purposes of this section, the following shall not be considered an “enclosed area”: (1) Rooms or areas, enclosed by walls, windows or doorways, having neither a ceiling nor a room and which are completely open to the elements and weather at all times; and (2) rooms or areas, enclosed by walls, fences, windows or doorways and a roof or ceiling, having openings that are permanently open to the elements and weather and which comprise an area that is a least 30% of the total perimeter wall area of such room or area.
6. “Food Service Establishment” is defined as stated in K.S.A. 21-4009 (f);
“Food service establishment” means any place in which food is served or is prepared for sale or service on the premises. Such term shall include, but not be limited to, fixed or mobile restaurants, coffee shops, cafeterias, short-order cafes, luncheonettes, grills, tea rooms, sandwich shops, soda fountains, taverns, private clubs, roadside kitchens, commissaries, and any other private, public or nonprofit organization or institution routinely serving food and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.
7. “Outdoor recreational facility” is defined as stated in K.S.A. 21-4009 (i);
“Outdoor recreational facility” means a hunting, fishing, shooting or golf club, business or enterprise operated primarily for the benefit of its owners, members and their guests and not normally open to the general public.
8. “Place of Employment” is defined as stated in K.S.A. 21-4009 (j);
“Place of Employment” means any enclosed area under the control of a public or private employer, including, but no limited to, work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways, that is used by employees during the course of employment. For purposes of this section, a private residence shall not be considered a “place of employment” unless such residence is used as a day care home, as defined in K.S. A. 65-530, and amendments thereto.
9. “Private Club” is defined as stated in K.S.A. 21-4009 (k);
“Private building” means an outdoor recreational facility operated primarily for the use of its owners, members and their guest that in its ordinary course of business is not open to the general public for which use of its facilities has substantial dues or membership fee requirements for its members.
10. “Public Building” is defined as stated in K.S.A. 21-4009 (l);
“Public building” means any building owned or operated by: (1) The state, including any branch, department, agency, bureau, commission, authority or other instrumentality thereof; (2) any county, city, township, other political subdivision, including any commission, authority, agency or instrumentality thereof; or (3) any other separate corporate instrumentality or unit of the state or any municipality. (m)
11. “Public Place” is defined as stated in K.S.A. 21-4009 (n);
“Public place” means any enclosed areas open to the public or used by the general public including, but not limited to: Banks, bars, food service establishments, retail service establishments, retail stores, public means of mass transportation, passenger elevators, health care institutions or any other place where health care services are provided to the public, medical care facilities, educational facilities, libraries, courtrooms, public buildings, restrooms, grocery stores, school buses, museums, theaters, auditoriums, arenas and recreational facilities. For purposes of this section, a private residence shall not be considered a “public place” unless such residence is used as a day care home, as defined in K.S.A. 65-530, and amendments thereto.
No person shall smoke in an enclosed area or at a public meeting, including but not limited to:
1. Public places;
2. Taxicabs and limousines;
3. Restrooms, lobbies or other common areas in public and private buildings, condominiums and other multiple residential facilities;
4. Restrooms, lobbies or other common areas in hotels and motels and in at least 80% of the sleeping quarters within a hotel or motel;
5. Access points of all buildings that are not exempt in Section 10-706;
6. Any place of employment.
1. The person having control of a place, subject to this Ordinance, shall not knowingly permit, cause, suffer or allow any person to violate the provisions of this Ordinance in that place.
2. The person having control of a place, subject to this Ordinance, 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 circles with a red bar across it) at every public entrance.
3. To the extent necessary for the enforcement of this Ordinance, the provisions of K.S.A. 21-4009 (b) and (c) are incorporated into this Ordinance.
The provisions of this article shall not apply to:
1. Private homes or residences, except as noted in K.S.A. 21-4009 (d) (2);
2. The outdoor areas of any building or facility beyond the access point of such building or facility;
3. Hotel or motel rooms rented to one or more guests if the total percentage of such hotel or motel rooms does not exceed 20%;
4. That portion of an adult day care facility as stated in K.S.A. 21- 4009 (d) (5);
5. Tobacco shops;
6. Class A and B clubs as stated in K.S.A. 21-4009 (d) (8);
7. Private clubs in areas where minors are prohibited.
Any person who violates the provisions of this article shall be guilty of a cigarette and tobacco infraction as shall be punished by a fine;
1. For the first infraction, $100.00;
2. For the second infraction, $200.00;
3. For the third and subsequent infractions, $500.00;
4. Infraction timing shall be counted by starting on the day of the first conviction or diversion of the first offense, and shall proceed for a year from that date.
This ordinance is intended to conform to the enactment of the Kansas Legislature and shall be construed in conformance with K.S.A. 21- 4009 and any amendments thereto. To the extent necessary any provision of this Ordinance that is in conflict with K.S.A. 21-4009 shall be deemed null and void, and the provisions of the Kansas Legislature shall control.
The provisions of this Ordinance shall be liberally construed to effectively carry out its purposes which are hereby found and declared to be in furtherance of the public health, safety, and welfare, and convenience.
The repeal of Ordinance or Code sections, as provided herein below shall not affect any rights acquired, fines, penalties, forfeitures, or liabilities therefore. Said Ordinance or Code repealed is hereby continued in force and effect after the passage, approval, and publication of the Ordinance for the purposes of such rights, fines, penalties, forfeitures, liabilities, and actions therefore.
This article shall be incorporated into the Ottawa Municipal Code upon its adoption and publication in the official city newspaper, but the ordinance shall not become effective until June 1, 2008.