ORDINANCE NO 21-11052
AN ORDINANCE AMENDING ARTICLE III OF CHAPTER 17 OF THE SALINA CODE, INCLUDING SECTIONS 17-25, 17-26, 17-27, 17-28, 17-29, 17-30, 17-31, 17-32, 17-33, and 17-34 PERTAINING TO PROHIBITIONS OF SMOKING AND THE USE OF ELECTRONIC CIGARETTES IN ENCLOSED PUBLIC PLACES, PUBLIC MEETINGS, AND ENCLOSED PLACES OF EMPLOYMENT; PERTAINING TO PROHIBITIONS OF SMOKING, THE USE OF ELECTRONIC CIGARETTES, AND THE USE OF TOBACCO PRODUCTS IN CITY OUTDOOR RECREATION AREAS; AND REPEALING THE EXISTING SECTIONS.
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
Section 1. Amendment. Section 17-25 of the Salina Code is amended to read as follows:
Sec. 17-25. Public policy.
Numerous studies have determined that environmental tobacco smoke (ETS) is a source of exposure to toxic contaminants causally associated with respiratory illnesses, including lung cancer, asthma, and emphysema. In 2009, the governing body recognized by the adoption of Ordinance Number 09-10481 that ETS posed a public health risk, that non-smokers needed protection from ETS exposure, and that regulation of the burning of tobacco in enclosed public places and places of employment was needed to protect the public health and welfare of the citizens of the city. Further studies have determined that secondhand exposure to vapor aerosol from the various forms of electronic cigarettes, whether containing nicotine or not, also poses a public health risk and that exposure to ETS and environmental vapor aerosol occurs in both indoor and outdoor public areas. Also, tobacco product debris pollution is prevalent in the city’s system of outdoor recreational areas. Accordingly, it shall be the public policy of this city to:
(1) Recognize that as a matter of public health, the need to breath smoke-free and vapor-free air has priority over the choice to smoke or to use electronic cigarettes;
(2) Protect the right of nonsmokers and nonusers of electronic cigarettes to breath smoke-free and vapor-free air in enclosed public places, public meetings, enclosed places of employment, and the city’s outdoor recreation areas by prohibiting smoking and the use of electronic cigarettes in enclosed public places, public meetings, places of employment, and the city’s outdoor recreational areas; and
(3) Address the matter of tobacco product debris pollution by prohibiting the use of tobacco products in the city’s outdoor recreational areas with limited exception.
Section 2. Amendment. Section 17-26 of the Salina Code is amended to read as follows:
Sec. 17-26. Definitions.
For the purpose of this article, the following words and terms as used herein are defined to mean the following:
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 section 17-31.
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.
City outdoor recreational area means any outdoor area that is owned, controlled, or operated by the city and open to the general public for engaging in or observing recreational activities, regardless of whether any fee for admission is charged, including, but not limited to, parks, playgrounds, picnic areas, sports fields, sports arenas, courts, bleachers and grandstands, walking and biking paths, hiking trails, water parks, splash parks, municipal golf courses and driving ranges, skating rinks, skateboard parks, and gardens. A city outdoor recreational area includes any streets, roads, parking lots, and sidewalks within its boundaries, but does not include the space within a fully enclosed private motor vehicle lawfully parked on any street, road, or parking lot within a city outdoor recreational area.
Business means a sole proprietorship, partnership, joint venture, corporation, limited liability company, or other business entity, either for profit or not-for-profit, including, but not limited to, retail establishments where goods or services are provided and professional corporations or other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.
Electronic cigarette means an electronic or battery-powered device, whether shaped like a cigarette or not, that can provide inhaled doses of nicotine or other substance(s) by delivering a vaporized solution by means of cartridges or other chemical delivery systems. An electronic cigarette includes, but is not limited to, any electronic nicotine delivery system, electronic vaping device, personal vaporizer, electronic pipe, electronic hookah, or vapor pen.
Employee means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit and any person who volunteers his or her services for a non-profit entity.
Employer means any person, partnership, corporation, association or organization, including a municipal corporation, trust, or not-for-profit entity that employs the services of one or more individual persons.
Enclosed area means all space between a floor and ceiling that is enclosed on all sides by solid walls, windows, or doorways that extend from the floor to the ceiling, including all space therein screened by partitions that 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 roof and that are completely open to the elements and weather at all times; and (2) rooms or areas, enclose by walls, fences, windows or doorways and a roof or ceiling, having openings that are permanently open to the elements and weather and that comprise an area that is at least 30% of the total perimeter wall area of such room or area.
Food service establishment means any place in which food is served or is prepared for sale or service on the premises or elsewhere. Such term shall include, but not be limited to, fixed or mobile restaurant, coffee shop, cafeteria, short-order café, luncheonette, grill, tea room, sandwich shop, soda fountain, bar, tavern, private club, roadside kitchen, commissary, any location served by a caterer 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. The term “restaurant” shall include a bar area within the restaurant.
Health care facility means any place in which health care or treatment is offered, whether physical, mental, or emotional, or other medical, physiological, or psychological condition, including, but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.
Place of employment means an enclosed area under the control of a public or private employer, including, but not limited to, work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways, and vehicles that are 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 childcare, adult day care or health care facility; or used as a business in which one or more persons are employed.
Private club means an organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain, and which only sells alcoholic beverages incidental to its operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and /or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Section 501.
Private place means any enclosed area to which the public is not invited or in which the public is not permitted, including, but not limited to, personal residences or personal motor vehicles. A privately owned business, open to the public, is not a private place.
Public meeting means any meeting open to the public pursuant to K.S.A. 75-4317 et seq., and amendments thereto, or any other law of this state.
Public place means an enclosed area to which the public is invited or in which the public is permitted, including, but not limited, to banks, bars, educational facilities, health care facilities, hotel and motel lobbies, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. A private residence is not a “public place” unless it is used as a childcare, adult day care, or health care facility required to be licensed by the state.
Service line means any indoor line during 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.
Shopping mall means an enclosed public walkway or hall area that serves to connect retail or professional establishments.
Smoking means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, or other tobacco product, or any pipe or vessel containing burning tobacco of any kind.
Sports arena means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rings, bowling alleys, billiard and bingo facilities and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports or other events.
Tobacco product means any product, other than an electronic cigarette, containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff.
Section 3. Amendment. Section 17-27 of the Salina Code is amended to read as follows:
Sec. 17-27. Prohibition of smoking, use of electronic cigarettes, and use of tobacco products in city outdoor recreational areas.
It shall be unlawful, with no requirement of a culpable mental state, to smoke, to use an electronic cigarette, or to use tobacco products:
(1) in a city outdoor recreational area; and
(2) within twenty (20) feet of the perimeter boundary of a city outdoor recreational area, except to the extent the additional 20-foot area extends onto private property.
Section 4. Amendment. Section 17-28 of the Salina Code is amended to read as follows:
Section 17-28. Prohibition of smoking and use of electronic cigarettes in enclosed public places, public meetings, and other places; smoke and electronic cigarette vapor free workplace.
It shall be unlawful, with no requirement of a culpable mental state, to smoke or to use an electronic cigarette in an enclosed area or at a public meeting within the city, including, but not limited to, the following places:
- Public places;
- Public transportation and transportation facilities including, but not limited to, buses, bus terminals, taxicabs, train stations, limousines, and airports; as well as ticket, boarding, and waiting areas of public transit facilities;
- Restrooms, lobbies, reception areas, hallways, elevators, and any other common areas in public and private buildings, apartment buildings, condominiums, common areas in mobile home parks (club houses, storm shelters), retirement facilities, nursing homes, and other multiple-residential facilities;
- Restrooms, lobbies, reception areas, hallways, elevators, and other common areas in hotels and motels and in a least 80% of the sleeping quarters within a hotel or motel that may be rented to guests;
- Access points of all buildings and facilities not exempted pursuant to section 17-31;
- Any place of employment;
- All vehicles and enclosed facilities owned, leased, or operated by the city;
- Service lines;
- Retail stores and retail service establishments;
- All areas available to and customarily used by the general public in all businesses and non-profit entities patronized by the public, including, but not limited to, offices, banks, and laundromats;
- Food service establishments and bars, excluding areas of a food service establishment or bar that are not enclosed areas;
- Galleries, libraries, and museums;
- Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except that performers may smoke when the smoking is a part of a stage production;
- Sports arenas and convention halls; bowling facilities and billiard parlors;
- Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including 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 located within the city;
- Waiting rooms, hallways, wards, and patient rooms of health care facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ offices, and dentists’ offices;
- Polling places;
- Private clubs and fraternal organization facilities;
- Licensed childcare and adult day care facilities; and
- Bingo facilities.
Section 5. Amendment. Section 17-29 of the Salina Code is amended to read as follows:
Section 17-29. Employer policies regarding smoking and use of electronic cigarettes in enclosed places of employment.
Each employer having a place of employment that is an enclosed area shall provide a smoke-free and an electronic cigarette vapor-free workplace for all employees. Such employer shall also adopt, implement, make known, and maintain a written smoking and electronic cigarette policy which shall prohibit smoking and the use of electronic cigarettes, without exception, in all areas of the place of employment. Such policy shall be communicated to all current employees within one week of its adoption and shall be communicated to all new employees upon hiring. Each employer shall provide a written copy of the smoking policy upon request to any current or prospective employee.
Section 6. Amendment. Section 17-30 of the Salina Code is amended to read as follows:
Section 17-30. Reserved.
Section 7. Amendment. Section 17-31 of the Salina Code is amended to read as follows:
Section 17-31. Where smoking and use of electronic cigarettes are not regulated.
Notwithstanding any other provision of this article to the contrary, the following areas shall not be subject to the restrictions of this article:
- The outdoor areas of any building or facility beyond the access points of such building or facility;
- Private homes or residences, except when such or home or residence is used as a public place, place of employment, licensed child care facility, or a licensed day care home as defined in K.S.A. 65-530, as amended;
- A hotel or motel room rented to one or more guests if the total percentage of such hotel or motel rooms in such hotel or motel does not exceed 20%;
- Private places; and
- Areas of a food service establishment or bar that are not an enclosed area.
Section 8. Amendment. Section 17-32 of the Salina Code is amended to read as follows:
Sec. 17-32. Voluntary declaration of the prohibition of smoking and/or use of electronic cigarettes.
Notwithstanding any other provision of this article, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor place of employment may declare that smoking and/or use of electronic cigarettes are prohibited throughout the entire establishment, facility, or outdoor place of employment consistent with the provisions of this article.
Section 9. Amendment. Section 17-33 of the Salina Code is amended to read as follows:
Section 17-33. Responsibility of proprietors.
The proprietor or other person having control of a place governed by this article shall:
- Not knowingly permit, cause, suffer or allow any person to violate the provisions of this article in that place and shall take all necessary steps to prevent or stop another person from smoking or using an electronic cigarette in violation of this article.“Necessary steps” means to take all reasonable actions to prevent smoking and the use of an electronic cigarette in violation of this article by employees, patrons and visitors in the place, business, office, or establishment, including: verbally asking a person who is smoking to extinguish the smoking materials; verbally asking a person who is using an electronic cigarette to stop using the electronic cigarette; refusing service to a person who is illegally smoking or using an electronic cigarette; verbally asking anyone illegally smoking or using an electronic cigarette to leave the premises; and applying standard business procedures in the same manner for violations of house rules or other local ordinances or state laws.If the employee, patron, or visitor smoking in violation of this article is hearing impaired, the communications with that person may be written, in sign language, or other effective means of communications.
- Post and maintain in areas where the public is allowed and areas where employees are allowed signs that clearly and conspicuously state that smoking is prohibited.Such “no smoking” signs shall have bold lettering of not less than one (1) inch in height.The international “No Smoking” symbol may also be used (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it).In addition to, or included within, the signage required in this subsection (2), the proprietor or other person in charge of the premises of a place governed by this article shall post or cause to be posted in a conspicuous place signs displaying symbols or language clearly signifying that the use of electronic cigarettes, or “vaping”, is prohibited.To comply with this subsection in relation to city outdoor recreation areas, the city manager shall have the authority to determine the number and location of signage at each city outdoor recreation area, based upon the nature and character of the city outdoor recreation area.
- Remove all ashtrays and other smoking paraphernalia from any area in which smoking is prohibited by this article.
- Comply with all physical separation and ventilation standards to prevent the drifting, permeation or re-circulation of smoke or electronic cigarette vapor into areas in which smoking and the use of electronic cigarettes are prohibited.
- Communicate the prohibition on smoking and use of electronic cigarettes to all existing employees by the effective date of this article and to all prospective employees upon his or her application for employment.
Section 10. Amendment. Section 17-34 of the Salina Code is amended to read as follows:
Section 17-34. Enforcement, violations, and penalties.
- It shall be unlawful for any person who own, manages, operates, or otherwise controls the use of any public place or other area where smoking or the use of electronic cigarettes is prohibited, to fail to comply with all or any of the provisions of this article.
It shall be unlawful for any person who owns, manages, operates, or otherwise controls the use of any public place or other area where smoking or the use of electronic cigarettes is prohibited, to allow smoking or the use of electronic cigarettes to occur under this subsection if such person: (1) has knowledge that smoking or the use of electronic cigarettes is occurring; and (2) recklessly permits smoking or the use of electronic cigarettes under the totality of the circumstances.
It shall be unlawful for any person, with no requirement of a culpable mental state, to smoke, to use electronic cigarettes, or to use tobacco products where prohibited by the provisions of this article.
- A person who violates any provision of this article shall be guilty of a misdemeanor, punishable by:
- A fine of no less than one hundred dollars ($100.00) for a second violation within a one-year period of the first violation.
- A fine of no less than two hundred dollars ($200.00) for a third or subsequent violation within a one-year period of the first violation.
3. A fine no less than fifty dollars ($50.00) for a first violation.
- Each occurrence of a violation of this article shall be considered a separate and distinct violation.
- In addition to the fines established by this section, violation of this article by a person having control of a public place or place of employment may result in the suspension or revocation of any permit or license issued by the city to the person for the premises on which the violation occurred.
- Violation of this article is hereby declared to be a public nuisance, which may be abated by the city manager by restraining order, preliminary and permanent injunction, or other means provided for by law, against the proprietor of the public place or place of employment, and the city may take action to recover the costs of the nuisance abatement.
Section 11. Amendment. The title of Article III, Chapter 17 of the Salina Code is amended to read as follows: “Regulation of Smoking, Use of Electronic Cigarettes, and Use of Tobacco Products”.
Section 12. Repealer. Existing Salina Code sections 17-25, 17-26, 17-27, 17-28, 17-29, 17-30, 17-31, 17-32, 17-33, and 17-34 are repealed.
Section 13. Effective. This ordinance shall be in full force and effect from and after its adoption and publication once in the official city newspaper by the following summary;
Ordinance No. 21-11052 Summary
On June 28, 2021, the City of Salina, Kansas, passed Ordinance No. 21-11052. The ordinance amends Article III of Chapter 17 of the Saline Code, including sections 17-25, 17-26, 17-27, 17-28, 17-29, 17-30, 17-31, 17-32, 17-33, and 17-34 pertaining to prohibitions on smoking and the use of electronic cigarettes in enclosed public places, public meetings, and places of employment; pertaining to prohibitions on smoking, the use of electronic cigarettes, and the use of tobacco products in city outdoor recreation areas; and repealing the existing sections. A complete copy of the ordinance is available at www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge. This summary is certified by the city attorney.
Introduced: June 21, 2021
Adopted June 28, 2021
Melissa Rose Hodges, Mayor
JoVonna A. Rutherford, City Clerk
Certification of Publication Summary:
Greg A. Bengtson, City Attorney