Smoke Free Ordinance of City of Dumaguete

RESOLUTION No. 171
Series of 2011
(Sponsored by Vice-Mayor Alan Gel S. Cordova, Councilors Joe Kenneth K. Arbas, Noel C. De Jesus, Manuel R. Arbon and Antonio J. Remollo)
WHEREAS, the 1987 Constitution of the Republic of the Philippines declares that the State shall protect and promote the right to health of the people and instill health consciousness among them;
WHEREAS, the Republic of the Philippines, under the Framework Convention on Tobacco Control (FCTC) to which she is a party, determined to give priority to the right to protect public health and to promote measures of tobacco control based on current and relevant scientific, technical and economic considerations, and agreed to implement the measures provided in the treaty;
WHEREAS, the Local Government Code of 1991 (Republic Act No. 7160) accords every local government unit power and authority to promote the general welfare within its territorial jurisdiction, including the promotion of health and safety of its constituents;
WHEREAS, the Philippine Clean Air Act of 1999 (Republic Act No. 8749) declares the right of every citizen to breathe clean air, prohibits smoking inside enclosed public places including public vehicles and other means of transport, and directs local government units to implement this provision;
Res. No. 171/Ord. No. 94, S-2011 Page 2

WHEREAS, the Tobacco Regulation Act of 2003 (Republic Act No. 9211) prohibits smoking in certain public places whether enclosed or outdoors; prohibits the purchase and sale of cigarettes and other tobacco products from and to minors and in certain places frequented by minors; imposes bans and restrictions on advertising, promotion and sponsorship activities of tobacco companies; and directs local government units to implement these provisions;
WHEREAS, the City of Dumaguete recognizes that local governments must act with urgency to denormalize the culture of smoking and tobacco consumption through comprehensive and proven effective tobacco control measures;
WHEREAS, the City of Dumaguete recognizes the fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy, and realizes the need to be alert to and informed of any efforts by the tobacco industry to undermine or subvert tobacco control efforts;
WHEREAS, scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability; lead to devastating health, social, economic and environmental consequences; and places burdens on families, on the poor, and on national and local health systems;
WHEREAS, an increasing number of Filipinos die each year of tobacco-related diseases such as stroke, heart disease, and various cancers, among others;
WHEREAS, scientific evidence has shown that there is no safe level of exposure to tobacco smoke; that nicotine is an addictive substance; that effective measures to protect from exposure to it requires the total elimination of smoking and tobacco smoke; and that approaches other than 100% smoke-free environments, including ventilation, air filtration and the use of designated smoking areas (whether or not with separate ventilation systems) have repeatedly been shown to be ineffective;

NOW THEREFORE, on motion of Councilor Joe Kenneth K. Arbas, duly seconded by Councilors Antonio J. Remollo and Erwin Michael L. Macias, the Sangguniang Panlungsod of the City of Dumaguete in session assembled
RESOLVED, AS IT IS HEREBY RESOLVED, to enact the following ordinance:
ORDINANCE No. 94

Series of 2011
AN ORDINANCE REGULATING THE USE, SALE, DISTRIBUTION AND ADVERTISEMENT OF CIGARETTES AND OTHER TOBACCO PRODUCTS IN CERTAIN PLACES, IMPOSING PENALTIES FOR VIOLATIONS THEREOF AND PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES

Res. No. 171/Ord. No. 94, S-2011 Page 3

Be it ordained by the City Council of Dumaguete, that:
Section 1. Title. This Ordinance shall be known as the “Smoke Free Ordinance of City of Dumaguete.”
Section 2. Purpose. — It is the purpose of this Ordinance to safeguard public health and ensure the well being of all its constituents by protecting them from the harmful effects of smoking and tobacco consumption.
Section 3. Coverage. — This Ordinance shall apply to all persons, whether natural or juridical, whether resident or not, and in all places, found within the territorial jurisdiction of City of Dumaguete.
Section 4. Definition of Terms. — As used in this Ordinance, the terms below shall have the meanings ascribed to them in this section. Any word or terms not defined shall be given their plain and customary meanings, unless the context requires otherwise, and shall be interpreted in a manner consistent with the purpose and spirit of this Ordinance.
a. Advertising and promotion means any form of commercial communication, recommendation or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly.

b. Civil society organization (CSO) refers to a legally constituted voluntary civic and social organization or institution created with no participation of government, including but not limited to, charities, development non-governmental organizations (NGOs), community groups, women’s organizations, faith-based organizations, professional associations, coalitions and advocacy groups duly accredited organizations. As used in this Ordinance, CSO does not include organizations or associations related to or connected with the tobacco industry in any way.

c. Enclosed or partially enclosed means being covered by a roof or enclosed by one or more walls or sides, regardless of the type of material used for the roof, wall or sides, and regardless of whether the structure is permanent or temporary.

d. Minor refers to any person below eighteen (18) years old.

e. Outdoor advertisement refers to any sign, model, placard, board, billboard, banner, bunting, light display, device, structure or representation employed outdoors wholly or partially to advertise or promote a tobacco product to the public.

f. Person-in-charge refers to: in case of public places, public outdoor spaces and workplaces, the president/manager in case of a company, corporation or association, the owner/proprietor/operator in case of a single proprietorship, or

Res. No. 171/Ord. No. 94, S-2011 Page 4

the administrator in case of government property, office or building; in case of public conveyances, the owner, driver, operator, conductor, or the captain of the public conveyance.
g. Point-of-sale refers to any location at which an individual can purchase or otherwise obtain tobacco products.

h. Public conveyances refers to modes of transportation servicing the general population, such as, but not limited to, elevators, airplanes, ships, jeepneys, buses, taxicabs, trains, light rail transits, tricycles and other similar vehicles.

i. Public places means all places, fixed or mobile, that are accessible or open to the public, regardless of ownership or right to access, including, but not limited to, establishments that provide food and drinks, accommodation, merchandise, professional services, entertainment or other services. It also includes outdoor spaces where facilities are available for the public or where a crowd of people would gather, such as, but not limited to, playgrounds, sports grounds or centers, church grounds, health/hospital compounds, transportation terminals, markets, parks, resorts, walkways, entrance ways, waiting areas, and the like.

j. Second-hand smoke means the smoke emitted from the burning end of a cigarette or from other tobacco products usually in combination with the smoke exhaled by the smoker.

k. Third-hand smoke means tobacco smoke contamination that remains after the cigarette has been extinguished.

l. Smoking means being in possession or control of a lit tobacco product regardless of whether the smoke is being actively inhaled or exhaled.

m. Tobacco Products means products entirely or partly made of the leaf tobacco as raw material which are manufactured to be used for smoking, sucking, chewing or snuffing, such as cigarettes and cigars.

n. Workplace means any public place used by people during their employment or work, whether done for compensation or voluntarily, including all attached or associated places commonly used by the workers in the course of their work (for example, corridors, elevators, stairwells, toilets, lobbies, lounges). Vehicles used in the course of work are considered workplaces.

Section 5. Prohibited Acts. The following acts are declared unlawful and prohibited by this Ordinance:

Res. No. 171/Ord. No. 94, S-2011 Page 5

a. Smoking in enclosed or partially enclosed public places, workplaces, public conveyances, or other public places, as defined in Section 4, such as but not limited to:

a.1. Centers of youth activity, including schools of all levels, youth hostels and recreation facilities for persons under eighteen (18) years old;
a.2. Elevators and stairwells;
a.3. Locations in which fire hazards are present, including gas stations and storage areas for flammable liquids, gas, explosives or combustible material;
a.4. Within buildings and premises of public and private hospitals, medical dental and optical clinics, health centers, nursing homes, dispensaries and laboratories;
a.5. Public conveyances and public facilities including airport and ship terminals and bus stations, restaurants and conference halls, except for separate designated smoking areas; and
a.6. Food preparation areas.
b. Selling or distributing tobacco products in a school, public playground or other facility frequented by minors, or within 100 meters from any point in the perimeter of these places;

c. Selling or distributing tobacco products to minors;

d. Using minors to purchase tobacco products;

e. Purchasing tobacco products from minors;

f. Placing cinema and outdoor advertisements of tobacco products;

g. Placing, posting or distributing advertising materials of tobacco products, such as leaflets, posters and similar materials, outside the premises of point-of-sale establishments;

h. Placing, posting, or distributing advertising materials of tobacco products, such as leaflets, posters and similar materials, even if inside the premises of point-of-sale establishments, when the establishments are not allowed to sell or distribute tobacco products, as in Section 5(b) above

Persons-in-charge shall be held similarly liable for the above acts if they are found to have allowed, abetted, or tolerated the same.
Section 6. Duties and Obligations of Persons-in-Charge. — Persons-in-charge shall:

Res. No. 171/Ord. No. 94, S-2011 Page 6

a. Prominently post and display “No Smoking” signages in English and Vernacular languages in locations most visible to the public in the areas where smoking is prohibited, including vehicles. At the very least, a “No Smoking” sign must be posted at the entrance to the area. The “No Smoking” sign shall be at least 8 x 16 inches in size and the international No Smoking symbol shall occupy no less than 70% of the signage. The remaining lower 30% of the signage shall show the following information:

[International No Smoking symbol]
STRICTLY NO SMOKING
As per ORDINANCE NO. _________
Violators can be fined up to P_____
Report violations to ____________
[Hotline number optional]

b. Remove from the places where smoking is prohibited all ashtrays and any other receptacles for disposing of cigarette refuse. He or she may establish a smoking area in the place secluded from non-smokers, such as waiters or waitresses. The designated smoking area other than in an open space shall be effected through any of the following means:

b.1. The designated smoking area must be fully separated from smoke-free area by continuous floor-to-ceiling or floor-to-floor solid partitions which are interrupted only by doors equipped with door closers, and which must be constantly closed except when a person is entering or exiting the area; or
b.2 The designated smoking area must be set apart enclosed or confined by means other than those described in the preceding paragraph; Provided, that said means shall enable compliance to air quality standards set forth in the National Building Code and the Philippine Society of Mechanical Engineers’ Code.
c. For persons-in-charge of schools, public playgrounds or other facilities frequented by minors, post the following statement in a clear and conspicuous manner:

SELLING OF CIGARETTES OR OTHER TOBACCO PRODUCTS NOT ALLOWED WITHIN 100 METERS FROM [SCHOOL/ETC.] PERIMETER
For persons-in-charge of point-of-sale establishments, post the following statement in a clear and conspicuous manner:
SALE/DISTRIBUTION OF TOBACCO PRODUCTS TO MINORS IS UNLAWFUL

Res. No. 171/Ord. No. 94, S-2011 Page 7

When selling to young customers, it is the duty of the persons-in-charge or their employees to ascertain the age of said customers, such as but not limited to requiring the production of driver’s license.
d. Establish internal procedure and measures through which this Ordinance shall be implemented and enforced within the area of which he or she is in charge, including, but not limited to, warning violators and requesting them to stop smoking, and if they refuse to comply, asking them to leave the premises, and if they still refuse to comply, reporting the incident to the city health officer, the nearest peace officer or any deputized officer.

e. Ensure that all the employees in the establishment are aware of this Ordinance and the procedure and measures for implementing and enforcing it.

f. Allow inspectors acting under Sections 14 and 15 hereof and representatives of the designated civil society organization under Section 16 entry into the establishment during regular business hours for the purpose of inspecting its compliance with this Ordinance.

Section 7. Persons Liable. — The following persons shall be liable under this Ordinance:
a. Any person or entity who commits any of the prohibited acts stated in Section 5 hereof;

b. Persons-in-charge who knowingly allow, abet, or tolerate the prohibited acts enumerated in Section 5, or who otherwise fail to fulfill the duties and obligations enumerated in Section 6 hereof.

Section 8. Penalties. — The following penalties shall be imposed on violators of this Ordinance:
a. Violation of Section 5 (a) and Section 6

i. First Offense Reprimand
ii. Second Offense P 500.00
iii. Third Offense and
Subsequent Offenses
P1,000.00 or imprisonment for a period not exceeding five (5) days, or both at the discretion of the court.

 EXCERPT FROM THE MINUTES OF THE REGULAR SESSION OF THE
SANGGUNIANG PANLUNGSOD OF THE CITY OF DUMAGUETE
HELD AT THE SESSION HALL ON APRIL 18, 2012
PRESENT:
HON. ANTONIO J. REMOLLO CITY COUNCILOR
HON. JOE KENNETH K, ARBAS CITY COUNCILOR
HON. FRANKLIN D. ESMEÑA, JR. CITY COUNCILOR
HON. ERWIN MICHAEL L. MACIAS CITY COUNCILOR
HON. NILO D. SAYSON, Temp. Presiding Officer CITY COUNCILOR
HON. JOSE VICTOR V. IMBO CITY COUNCILOR
HON. MANUEL R. ARBON CITY COUNCILOR
HON. ESPERIDION V. CATAN CITY COUNCILOR
HON. NOEL C. DE JESUS CITY COUNCILOR
HON. DANILO T. LEON CITY COUNCILOR
HON. ALBERT C. AQUINO, LNMB President CITY COUNCILOR
HON. CYRINE LEE D. MAPILI, SK President CITY COUNCILOR
ABSENT:
HON. ALAN GEL S. CORDOVA, (Official Business) CITY VICE-MAYOR

RESOLUTION No. 151
Series of 2012
(Authored by: Councilor NOEL C. DE JESUS)

WHEREAS, City Ordinance No. 94, Series of 2011 was enacted pursuant to and in conjunction with Republic Act No. 9211, otherwise known as the “Tobacco Regulation Act of 2003”;
WHEREAS, it is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid. The principle is frequently expressed in the declaration that municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the state. In every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be consistent with the general law (Batangas CATV, Inc. vs. CA);
WHEREAS, in the language of Justice Isagani Cruz, the Supreme Court, in Magtajas vs. Pryce Properties Corp., Inc., ruled that:
The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.

Res. No. 151/Ord. No. 24, S-2012 Page 2

WHEREAS, in consideration of the preceding disquisitions, and for purposes of practicality and effective implementation of City Ordinance No. 94, certain amendments thereto are in order.
NOW THEREFORE, on motion of Councilor Noel C. De Jesus, duly seconded by Councilor Antonio J. Remollo, the Sangguniang Panlungsod of Dumaguete in session assembled
RESOLVED, AS IT IS HEREBY RESOLVED, to enact the following ordinance:

ORDINANCE No. 24
Series 2012

AN ORDINANCE AMENDING SECTIONS 4 (C), 5 (A) AND 19 OF ORDINANCE NO. 94, SERIES OF 2011, ENTITLED “AN ORDINANCE REGULATING THE USE, SALE, DISTRIBUTION AND ADVERTISEMENT OF CIGARETTES AND OTHER TOBACCO PRODUCTS IN CERTAIN PLACES, IMPOSING PENALTIES FOR VIOLATIONS THEREOF AND PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES”

SECTION 1. Sections 4 (c), 5 (a) and 19 are hereby amended to read as follows:
Section 4. Definition of Terms. –
x x x (a to b)
c. Enclosed area refers to an area that is physically separated from adjacent areas by walls or partitions and a roof or ceiling. The walls or partitions must be continuous, interrupted only by door and windows. The mere presence of a roof or ceiling over the structure, but without walls or partitions surrounding said structure, does not constitute an enclosed area”.
x x x x x x x x x
Section 5. Prohibited Acts. –
a. Smoking in enclosed public places, workplaces, public conveyances, or other public places, as defined in Section 4, such as but not limited to:

x x x x x x x x x

Res. No. 151/Ord. No. 24, S-2012 Page 3
Section 19.
Conduct of Orientation Seminars and Trainings. Within sixty (60) calendar days from the effectivity of this Ordinance and periodically thereafter, the Health Officer, with
the assistance of the Health Education and Promotion Officer and the CSO representative designated under Section 16 hereof, shall develop and conduct a series of orientation seminars and trainings for the enforcers of this Ordinance, at least one for each group, including but not limited to, deputized enforcers like the personnel of the Traffic Management Office, barangay tanods and the local PNP.”
SECTION 2. This Amendatory Ordinance shall take effect upon its approval.

APPROVED

source: dumaguetecity.gov.ph

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