2011/02/07: Brentwood votes to retain strong smoke-free air ordinance

At a meeting of the Brentwood City Council in St. Louis County on Monday, February 7th, 2011, council members failed by one vote to weaken the present strong smoke-free air ordinance and exempt the local American Legion post. The vote was 4 supporting the amendment to 3 opposed but 5 votes – a majority of the 8 member council – was required.

Errata: This blog originally mistakenly noted it as the VFW post, instead of the American Legion Goff-Moll Post 101, 2721 Collier Ave, Brentwood, MO 63144 | 314-961-3263. The error has now been corrected.

American Legion Goff-Moll Post 101, Brentwood

Note: Mr. Chris Seemayer, City Clerk & Administrator, explained later that Brentwood, with a population of approximately 7,600, opted for status as a 4th class city. Ordinance procedure is governed by Chapter 79 of the Missouri State Statutes when it comes to voting on a bill, specifically 79.130

Two people spoke in favor of retaining the current ordinance and not approve any weakening amendments, one being Martin Pion, president of Missouri GASP (Group Against Smoking Pollution), who spoke first. A member of the local American Legion Goff-Moll Post 101 spoke in favor of the amendment and remarked that it was the government who had originally provided free cigarettes to servicemen.

Martin Pion testifying in favor of Brentwood's strong smoke-free air ordinance and not weakening it.
City Clerk/Administrator, Chris Seemayer, is at right in the background.

Pion pointed out that while the St. Louis City and County ordinances which had gone into effect on January 2, 2011, provided important protections for many individuals, they had been the result of significant compromise, due in particular to pressure from the casinos and local bars. Those exemptions created an unfair situation for workers, all of whom deserved smoke-free air.

The ordinance already enacted by the City of Brentwood removed most of those exemptions. Of the four it contained, private residences and 25% of hotel/motel guest rooms were similar to those in the latest model ordinance recommended by Americans for Nonsmokers Rights, dated April 2010. The only other two exemptions remaining were private vehicles and retail tobacco stores. Brentwood’s ordinance was also an important blueprint for other local municipalities to follow.

Note: These are the only exemptions allowed in ANR’s current model ordinance, which regularly gets reviewed and updated as more stringent ordinances nationwide become the norm:

A. Private residences, unless used as a childcare, adult day care, or health care facility, and except as provided in Section 1007.

B. Not more than ten percent (10%) of hotel and motel rooms rented to guests and designated as smoking rooms. All smoking rooms on the same floor must be contiguous and smoke from these rooms must not infiltrate into areas where smoking is prohibited under the provisions of this Article. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms.

C. Outdoor areas of places of employment except those covered by the provisions of Section 1008.

Alderman Leahy proposing an amendment to exempt the local American Legion post

Alderman Andrew (“Andy”) Leahy, who sponsored the amendment to exempt the local American Legion post, said that during the time since the ordinance had gone into effect on January 1, 2011, attendance had dropped to one-third of normal. When members were asked their preference on the ordinance approximately 50 were in favor of requesting an exemption while only a few voted for smoke-free air. He stated that since cigarettes were a legal product it was inappropriate to impose restrictions on their use by members of the American Legion post. He added that members were also planning to apply for a liquor license.

After some debate on the measure, with at least one council member noting that several of her family members had died from cigarette-related diseases, the final vote tally was 4 in favor of the granting the American Legion post exemption to 3 opposed. It needed 5 votes, a majority of the council, to amend the existing ordinance.

The full text of the existing ordinance is pasted below with exemptions picked out in black:

ARTICLE XII. CLEAN AIR ACT — SMOKING PROHIBITED*
__________

Editor’s Note–Ordinance no. 4243 repealed article XII, “Offenses Involving Smoking” and set out new provisions herein. Former §§13-250–13-255 derived from ord. no. 3084 §2, 9-17-90 and ord. no. 3597 §1, 4-6-98.

*Cross references: Administration, Ch. 2; alcoholic beverages, Ch. 3; buildings and building regulations, Ch. 6; fire prevention and protection, Ch. 9; licenses, taxation and miscellaneous business regulations, Ch. 12.

__________

Sec. 13-250. Purpose

The purposes of this Article are (1) to promote public health by creating environments which reduce citizens’ and workers’ exposure to secondhand tobacco smoke and (2) to create tobacco smoke free environments for citizens and workers through regulation in public places and the workplace.

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-251. Definitions.

(a) The following words, terms and phrases, when used in this Article, shall be construed as defined in this Section:

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.

Code Enforcement Officer means the fire marshal 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 on all sides by walls or windows continuous from the floor to the ceiling and enclosed by doors, including, but not limited to, lobbies, 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.

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 daycare 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.

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.

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

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-252. Prohibition of smoking in all enclosed places of employment and all enclosed public places.

(a) Smoking shall be prohibited in all enclosed places of employment within the City of Brentwood.

(b) Smoking shall be prohibited in all enclosed public places within the City of Brentwood, including but not limited to the following enclosed places:

(1) Elevators;

(2) Restrooms;

(3) Libraries, educational facilities, child care and adult daycare facilities, museums, auditoriums, aquariums and art galleries;

(4) 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;

(5) Any place of entertainment or recreation, including but not limited to gymnasiums, theaters, concert halls, bingo halls, billiard halls, bowling alleys, arenas, health spas, swimming pools and roller and ice skating rinks;

(6) Any place used for exhibiting a motion picture, stage drama, lecture, musical recital, or other similar performance;

(7) Shopping malls;

(8) Bars;

(9) Restaurants;

(10) Convenience facilities;

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

(12) All facilities, buildings, and all vehicles owned, leased or operated by the City Brentwood; and

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

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

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-253. Responsibilities of proprietors, owners and managers.

(a) A person who owns, manages, operates, or otherwise controls a place listed in Section 13-252 shall not knowingly permit, cause, suffer or allow any person to violate the provisions of this Article in such place. It shall be an affirmative defense to an alleged violation of this Article that a person who owns, manages, operates or otherwise controls a place listed in Section 13-252 has asked that the lighted cigarette, cigar, pipe or other tobacco product be extinguished or 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 who owns, manages, operates or otherwise controls a place listed in Section 13-252 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.

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-254. Where smoking is not regulated.

Notwithstanding any other provision of this Article to the contrary, smoking shall be permitted in any and all places not specified in Section 13-252. In particular, but not by limitation, the following shall not be subject to this Article.

(a) Private residences, except when used as licensed child care facilities, adult daycare facilities, health care facilities or enclosed places of employment.

(b) Private vehicles.

(c) Twenty-five percent (25%) of hotel and motel rooms may be permanently designated as smoking rooms.

(d) Retail tobacco stores that derive more than eighty percent (80%) of their total gross revenue from the sale of loose tobacco, cigarettes, cigars, pipes or other tobacco-related products, and which are not merely a department or subsection of a larger commercial establishment.

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-255. Penalty for violation of this article.

(a) A person who smokes in an area where smoking is prohibited by this Article shall be guilty of an Article violation, punishable by a fine of twenty-five dollars ($25.00) for the first violation and fifty dollars ($50.00) for each subsequent violation.

(b) A person who owns, manages, operates or otherwise controls a public place or place of employment and who fails to comply with this Article shall be guilty of an Article violation, punishable by:

(1) A fine of fifty dollars ($50.00) for the first violation;

(2) A fine of one hundred dollars ($100.00) for a second violation within a one (1) year period; and

(3) A fine of two hundred dollars ($200.00) for a third or subsequent violation within a one (1) year period.

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

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-256. Other applicable laws.

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

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-257. Construction.

This Article shall be strictly construed in any interpretation of its meaning. The provisions of this Article 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.

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-258. Enforcement of article.

(a) The authority to administer the provisions of this Article is vested in the fire marshal.

(b) The Code Enforcement Officer 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 Brentwood, Missouri.

(d) Any person who desires to register a complaint under this Article may initiate enforcement with the fire marshal.

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-259. Prohibition of smoking by fire marshal or ordinance.

Nothing in this Article shall be construed to limit the authority of the fire marshal to designate locations in which smoking may be prohibited nor to repeal any order by the fire marshal prohibiting smoking in any location, nor to repeal any ordinance prohibiting smoking in any location.

(Ord. No. 4243 §§1–2, 8-16-10)

Sec. 13-260. Effective Date

This Article shall become effective on January 1, 2011.

(Ord. No. 4243 §§1–2, 8-16-10)

Secs. 13-261–13-270. Reserved.

2 responses to “2011/02/07: Brentwood votes to retain strong smoke-free air ordinance

  1. Does MOGASP favor the banning of smoking in private residences in which children live?

    mogasp response: You’ll find the answer by clicking on “ABOUT MOGASP” at the top of any blog. I reproduce what you’ll find below:

    * Smoke-free air for nonsmokers.
    * Smoke-free lives for children.
    * A society where smoking is done only between consenting adults in private.

  2. Pubbed in VT paper 5 years ago:

    A Modest Proposal

    Dear Editor,
    Your article quoted Councilman Clark justifying his desire to boot smoking veterans out into the cold by saying “This seems like a good way to honor our veterans, to prolong their lives.”
    The Councilman would probably agree with the ALA’s spokesman, Joel Africk, who urged people not to send smokes to soldiers in Iraq even if those soldiers asked for them, saying “Tobacco use presents an immediate and real danger for our soldiers who are on the lines today… our troops should be sent care packages that don’t kill.”
    I would like to suggest that Clark and Africk spend some time with these fighting men personally and discuss such issues of honor and danger with them as they stand in the snow outside their vets’ halls or huddle in Afghani trenches. I’m sure they’d find the discussions most enlightening and I think that all Americans would benefit from the end result.

    Michael J. McFadden
    Author of “Dissecting Antismokers’ Brains”

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