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Ordinance 2014-18ORDINANCE NO. 2014-18 AN ORDINANCE OF THE CITY OF WYLIE, TEXAS, AMENDING CHAPTER 74 (OFFENSES AND MISCELLANEOUS PROVISIONS), ARTICLE I (GENERAL), SECTION 74 -2 (SMOKING AND TOBACCO USE IN MUNICIPAL BUILDINGS, FACILITIES AND VEHICLES) OF WYLIE'S CODE OF ORDINANCES; PROHIBITING SMOKING IN CITY PROPERTY, CITY FACILITIES, AND CITY PARKS; PROHIBITING THE SALE OF ELECTRONIC CIGARETTES, E- CIGARETTES, AND LIQUID NICOTINE TO MINORS; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE. WHEREAS, the City Council of the City of Wylie, Texas ( "City Council ") has investigated and determined that Section 74 -2 (Smoking and Tobacco Use in Municipal Buildings, Facilities and Vehicles) of Article 1 (General) of Chapter 74 (Offenses and Miscellaneous Provisions) of the City of Wylie ( "Wylie ") Code of Ordinances, should be amended; and WHEREAS, the City Council has further investigated and determined that the smoking of electronic cigarettes and/or e- cigarettes and liquid nicotine have been demonstrated to have a detrimental effect on others in close proximity to the smoker; and WHEREAS, the City Council has further investigated and determined that it is the right of all citizens to be able to choose for themselves whether to smoke either actively or passively; and WHEREAS, the City Council has further investigated and determined that it will be advantageous and beneficial to the City and its citizens to provide persons who access City property and City facilities and City parks a smoke -free environment; and WHEREAS, the City Council has further investigated and determined that the state and federal governments have been slow to respond meaningfully to the public health crisis caused by smoking, and to implement measures to curb smoking and its inherent dangerous effects on the general public's health; and WHEREAS, the City Council has further investigated and determined that the dangers posed by tobacco are not limited to cigarettes, pipes or other traditional forms of smoking; and WHEREAS, the City Council has further investigated and determined that the new, unregulated high -tech smoking devices, commonly referred to as electronic cigarettes or e- cigarettes, have recently become more available to consumers; and Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 1 of 9 WHEREAS, the City Council has further investigated and determined that nicotine is a known neurotoxin that is also one of the most highly addictive substances available for public consumption; and WHEREAS, the City Council has investigated and determined that, the manufacturers and marketers of electronic cigarettes or e- cigarettes purposefully and intentionally advertise their products as safe nicotine delivery devices and smoking cessation modalities; and WHEREAS, the City Council has further investigated and determined that laboratory tests conducted by the U.S. Food and Drug Administration ( "FDA ") have shown that electronic cigarettes or e- cigarette vapors contain carcinogens, including nitrosamines. Further, the FDA tests showed that electronic cigarettes or e- cigarettes vapors were found to contain toxic chemicals such as, diethylene glycol, a common ingredient in antifreeze and which ingredient, in 2007, was surreptitiously substituted for glycerin by several Chinese manufacturing companies in the making of toothpaste which resulted in the deaths of hundreds of people worldwide. While some manufacturers of electronic cigarettes or e- cigarettes dispute the FDA's findings as limited in scope and sample, these manufacturers have not submitted, for independent peer review, any of their findings that purportedly support their safety and smoking cessation claims; and WHEREAS, the City Council has further investigated and determined that concurrent with this lack of suitable information, manufacturers of electronic cigarettes or e- cigarettes offer their liquid nicotine cartridges in a variety of flavors, including, but not limited to, cherry, chocolate and vanilla, which flavorings the FDA and public health advocates warn are purposefully meant to appeal to and attract young people and are commonly referred to as "training wheels" for traditional cigarettes; and WHEREAS, the City Council has further investigated and determined that studies show that adolescents can become addicted to nicotine after ingesting the equivalent of twenty (20) traditional cigarettes, the amount traditionally available in a single pack, and the appeal created by the flavored electronic cigarettes, e- cigarettes and/or liquid nicotine can lead young people into a lifetime of nicotine addiction; and WHEREAS, the City Council has further investigated and determined that the nicotine content provided by electronic cigarettes or e- cigarettes is unknown and unspecified and presents a significant risk of rapid addiction or overdose; and WHEREAS, the City Council has further investigated and determined that other governments and public health organizations, including the World Health Organization and the Canadian government's FDA equivalent, the Heath Products and Food Branch Inspectorate, have joined the FDA in speaking out about the potential dangers posed by electronic cigarettes or e- cigarettes and are also calling on manufactures of electronic cigarettes or e- cigarettes to discontinue their safety claims until these products have been independently tested; and WHEREAS, the City Council has further investigated and determined that every year tobacco products siphon off more than $268 billion in directly related healthcare and lost worker Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 2 of 9 productivity costs and lead to the deaths of almost half a million Americans, and the City Council is supportive of tobacco cessation programs and modalities that have proven efficacy and utilize safe FDA - approved products; and WHEREAS, the City Council has further investigated and determined that protecting the citizens of the City against an untested nicotine product like electronic cigarettes, e- cigarettes and liquid nicotine represents sound public health and fiscal policy; and WHEREAS, the City Council has further investigated and determined that a ban on the sale of electronic cigarettes, e- cigarettes, liquid nicotine and like products in the City to persons under the age of eighteen (18) and a prohibition on self - service merchandising in the retail sale of electronic cigarettes, e- cigarettes, liquid nicotine and like products in order to minimize their physical accessibility to minors serves an important public interest in furtherance of the health, safety and general welfare of the citizens of the City; and WHEREAS, the City Council has further investigated and determined that the Texas Legislature currently prohibits the possession, purchase, consumption or receipt of cigarettes or tobacco products by minors, and the City enforces such regulations; and WHEREAS, the City Council has further investigated and determined that the Texas Legislature currently regulates vendor assisted sales and vending machines of cigarettes or tobacco products, including, but not limited to, prohibiting the use of the same by minors; and WHEREAS, the City Council has further investigated and determined that all legal notices required for amending the Code of Ordinances have been given in the manner and form set forth by law, and public hearings have been held on the proposed textual amendments and all other requirements of notice and completion of such procedures have been fulfilled; and WHEREAS, the City Council has further investigated and determined that in order to promote the public health, safety and welfare of the City and its citizens, it is in the best interest of the City and its citizens to amend the Code of Ordinances as set forth below. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2: Amendment to Section 74. Section 74 should be amended to read as follows: Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 3 of 9 Regulation of Smoking Section 74 -2 Definitions. The following words, terms and phrases, when used in this ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Building official as used herein shall mean the city's building official, or his designee, charged with, among other things, the duties of enforcing and administering this ordinance. Ci�y as used herein shall mean the city of Wylie, Texas. City ark means any property that the city has designated as park land, including but not limited to, public recreation fields, parking lots, pools, playgrounds, concession stands, restrooms, trails and any seating or observation areas located within, abutting and immediately adjacent thereto. City property means all real property owned, operated or leased by the city, including, but not limited to municipal complexes, fire stations, police stations, and animal shelters. City facility means any building or facility owned, operated, or leased by the city. Person shall mean an individual, a group of two or more individuals, proprietorship, corporation, partnership, limited partnership, limited liability company, wholesaler, association or other legal entity, or any licensed or unlicensed business. Retail tobacco store as used herein shall mean a retail store utilized primarily for the sale of tobacco products, accessories, electronic cigarettes and e- cigarettes and in which the sale of the other products is merely incidental. Smoke() or smoking as used herein shall mean and includes the carrying, possessing or holding of a pipe, cigarette, tobacco product, weed or other plant product, electronic cigarette, e- cigarette or liquid nicotine of any kind of which is burning or emitting a vapor. Section 74.3 Smoking prohibited in certain public areas (a) A person commits an offense in violation of this ordinance if he smokes in any of the following areas: (1) A public preschool, and a public or private primary or secondary school; or (2) City property, city facilities, or city parks. Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 4 of 9 (b) Notwithstanding any other provision of this section, any owner, operator, manager or other person, who controls any establishment or facility in the city, may declare that entire establishment or facility as a nonsmoking establishment by posting a sign that is visible to its patrons. Section 74 -4 Possession, purchase, consumption or receipt of electronic cigarettes or e- cigarettes and /or liquid nicotine by minors prohibited (a) A person who is younger than 18 years of age commits an offense if the individual: (1) Possesses, purchases, consumes or accepts an electronic cigarette, e- cigarette or liquid nicotine; or (2) Falsely represents himself or herself to be 18 years of age or older for displaying proof of age that is false, fraudulent or not actually proof of the individual's own age in order to obtain possession of, purchase or receive an electronic cigarette, e- cigarette or liquid nicotine. (b) It shall be a defense to prosecution for a violation of this section if the individual younger than 18 years of age possessed the electronic cigarette, e- cigarette or liquid nicotine in the presence of- (1) An adult parent, a guardian or a spouse of the individual; or (2) An employer of the individual, if possession or receipt of the electronic cigarette, e- cigarette or liquid nicotine is required in the performance of the employee's duties as an employee. (c) It shall also be a defense to prosecution for a violation of this section that the individual younger than 18 years of age is participating in an inspection or test of compliance in accordance with Section 161.088, Health and Safety Code. Section 74 -5 Sale of electronic cigarette or e- cigarette or liquid nicotine to persons younger than 18 years of age prohibited; proof of age required (a) A person or retailer commits an offense if the person or retailer with criminal negligence: (1) Sells, gives or causes to be sold or given an electronic cigarette or e- cigarette or liquid nicotine to someone who is younger than 18 years of age; or (2) Sells, gives or causes to be sold or given an electronic cigarette or e- cigarette or liquid nicotine to another person who intends to deliver it to someone who is younger than 18 years of age. Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 5 of 9 (b) If an offense under this section occurs in connection with a sale by an employee of the owner of a store in which electronic cigarettes, e- cigarettes and/or liquid nicotine is /are sold at retail, the employee is criminally responsible for the offense and is subject to prosecution. (c) It is a defense to prosecution under subsection (a)(1) that the person to whom the electronic cigarette, e- cigarette or liquid nicotine was sold or given presented to the defendant apparently valid proof of identification. (d) A proof of identification satisfies the requirements of subsection (c) if it contains a physical description and photograph consistent with the person's appearance, purports to establish that the person is 18 years of age or older and was issued by a governmental agency. The proof of identification may include a driver's license issued by this state or another state, a passport or an identification card issued by a state or the federal government. Section 74-6 Vendor assisted sales required; self - service merchandising prohibited (a) Except as provided by Subsection (b), a retailer or other person may not: (1) Offer electronic cigarettes, e- cigarettes or liquid nicotine for sale in a manner that permits a customer direct access to the electronic cigarettes, e- cigarettes or liquid nicotine; (2) Offer for sale or display for sale electronic cigarettes, e- cigarettes or liquid nicotine by means of self - service merchandising; or (3) Install or maintain an open display unit containing electronic cigarettes, e- cigarettes or liquid nicotine. (b) It is a defense to prosecution under subsection (a) if- (1) A facility or business is not open to persons younger than 18 years of age at any time; (2) A facility or business is a premises for which a person holds a package store permit issued under the Alcoholic Beverage Code; or (3) An open display unit is located in an area that is inaccessible to customers. Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 6 of 9 Section 74 -7 Compliance (a) The building official, code enforcement, police, or other city official designated by the city manager, shall be responsible for compliance with Sections 74 -2 through 74 -9. (b) The owner, operator, person in charge or manager of any facility regulated by this article shall comply with the provisions of this section. (c) The building official, code enforcement, police, or other city official designated by the city manager, in his sole discretion, may enforce this section by any of the following actions: (1) Serving written notice on the owner, operator, person in charge or manager of any facility, business or agency within the purview of this ordinance, requiring the correction, within a specified reasonable time frame, of any violation of this article; (2) Requesting the city attorney to maintain an action for injunction to enforce the provisions of this article, to cause the correction of any such violation and for assessment and recovery of a civil penalty of such violation, including attorneys' fees; or (3) Issuing a municipal court citation to any violator of this section. The remedies contained herein are cumulative of and in addition to any other remedies that are available to the city at law or in equity. (d) Any person may file a complaint with the city to initiate enforcement by the city. (e) In undertaking the enforcement of this article, the city is assuming an undertaking only to promote the general health, safety and welfare of its citizens. The city is not assuming any duty or obligation, nor is it imposing any duty and/or obligation on its officers and/or employees, nor is it liable in money damages or otherwise to any person who claims that the city and/or one of its officers and/or employees breached any such obligation, and the breach proximately caused injury. (f) This ordinance shall not be interpreted nor construed to permit smoking where it is otherwise restricted by other applicable laws. Section 74 -8 Violations and penalties (a) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this section to fail to comply with all of its provisions, except for violations noted in paragraph (b) of this section. (b) Any person who violates Section 74 -3 or 74 -4 of this ordinance shall be guilty of an offense publishable by: Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 7 of 9 (1) A fine not exceeding $100.00 for the first violation; (2) A fine not exceeding $200.00 for a second violation within a one -year period of the first violation; or (3) A fine not exceeding $500.00 for an additional violation within a one -year period of the first violation. (c) Any person who violates Sections 74 -5, 74 -6 or 74 -7 shall be guilty of an offense punishable by a fine not exceeding $500.00 except minors whose fines shall not exceed $250.00. (d) Each day's violation under this Ordinance shall constitute a separate offense. The penal provisions provided above do not preclude the city from filing suit to enjoin the violation and the city retains all other legal rights and remedies available pursuant to local, state and federal law. SECTION 3: Savings/Repealing Clause. All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 4: Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Wylie hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, and phrases be declared unconstitutional or invalid. SECTION 5: Effective Date. This Ordinance shall become effective from and after its adoption and publication as required by the City Charter and by law. Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks Page 8 of 9 DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS on this 13d' day of May, 2014. ATTESTED TO AND CORRECTLY RECORDED BY: Carole Ehrlich, ity Secretary DATE(S) OF PUBLICATION May 21, 2014in the Wylie Enterprise wxe-yz - Eric Hogue, M y APPROVED AS TO FORM: Abernathy Roeder Boyd & Joplin P.C. Richard M. Abernathy, City Attorneys Ordinance No. 2014 -18 - Amending Ordinance No. 2009 -15 Amending Section 74 -2 of Article I of Chapter 74 Smoking in Municipal Buildings, Facilities, Vehicles, and Parks OF rcft no.. �T`�PE OF TEAS Page 9 of 9 The Jar tit crsbiIIt Zruucs - Murphy Monitor - 'I he Princeton Herald - 7/r. > Sat: lhse News - THE WY6IE NEWS media STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned authority, on this day personally appeared Chad Engbrock, publisher of C & S Media, dba The Wylie News, a newspaper regularly published in Collin County, Texas and having general circulation in Collin County, Texas, who being by me duly sworn, deposed and says that the foregoing attached: City of Wylie Ordinance No. 2014 -18 was published in said newspaper on the following dates, to -wit: May 21, 2014 Chad Engbrock, Publisher Subscribed and sworn before me on this, the day of 4, , 2014 to certify which witness my hand and seal of office. Sonia A. Duggan commission Expim lj�om09 -02 -2016 Notary Publi d for The State of Vexas g My commission expires %1urph);'Saichsc'W) lic Office -I ION. Ballard - P.O- Bos 369 - Wplic.'l X 75098 - 972 -4t2 -5515 - 1av 972 - 442 -4318 I armenviIIe!Princeton Officc - 101 S. hla m - P_O. Box 512 - FarmersviIIe, FX 75412 - 972 - 784 63()`7 - 1'ax 972 -782- 7023 May 21 - May 22, 2014 ORDINANCE NO. 2014-18 AN ORDINANCE OF THE CITY OF WYLIE, TEX- AS, AMENDING CHAPTER 74 (OF- FENSES AND MIS- CELLANEOUS PROVISIONS), ARTICLE I (GEN- ERAL), SECTION 74 -2 (SMOKING AND TOBACCO USE IN MUNICI- PAL BUILDINGS, FACILITIES AND VEHICLES) OF WYLIE'S CODE OF ORDINANC- ES; PROHIBIT- ING SMOKING IN CITY PROPERTY, CITY . FACILI- TIES, AND CITY PARKS; PROHIB- ITING , THE SALE OF ELECTRONIC CIGARETTES, E- CIGARETTES, AND LIQUID NICOTINE TO MI- NORS; PROVID- ING FOR REPEAL- ING, SAVINGS AND SEVERABIL- ITY CLAUSES; PROVIDING ` FOR THE PUBLICA- TION OF THE CAP- TION HEREOF; AND PROVIDING FOR AN EFFEC- TIVE DATE OF THIS ORDINANCE. 2 -1t -83 -339 418M1Q .Aog A*�4 1