Senate Bill No. 28
(By Senator Foster)
[Introduced January 11, 2012; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-9G-1, §16-9G-2, §16-9G-3, §16-9G-4, §16-9G-5, §16-9G-6, §16-9G-7, §16-9G-8, §16-9G-9, §16-9G-10, §16-9G-11, §16-9G-12, §16-9G-13, §16-9G-14, §16-9G-15 and §16-9G-16, all relating to the Smoke Free West Virginia Act; providing definitions; prohibiting smoking in public places of employment and government vehicles; prohibiting smoking in student dormitories; designating other nonsmoking areas; providing exemptions; providing for enforcement; violations and penalties; local regulation; prohibiting smoking around entrances, exits, windows and ventilation intakes; and rules.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-9G-1, §16-9G-2, §16-9G-3, §16-9G-4, §16-9G-5, §16-9G-6, §16-9G-7, §16-9G-8, §16-9G-9, §16-9G-10, §16-9G-11, §16-9G-12, §16-9G-13, §16-9G-14, §16-9G-15 and §16-9G-16, all to read as follows:
ARTICLE 9G. SMOKE FREE WEST VIRGINIA ACT.
§16-9G-1. Short title.
This article is to be called the “Smoke Free West Virginia Act.”
§16-9G-2. Legislative findings.
(a) The West Virginia Legislature finds that tobacco smoke is a harmful and dangerous carcinogen to human beings and a hazard to public health. Secondhand tobacco smoke causes at least sixty-five thousand deaths each year from heart disease and lung cancer according to the National Cancer Institute. Secondhand tobacco smoke causes heart disease, stroke, cancer, sudden infant death syndrome, low-birth-weight in infants, asthma and exacerbation of asthma, bronchitis and pneumonia in children and adults. Secondhand tobacco smoke is the third leading cause of preventable death in the United States. West Virginia workers exposed to secondhand tobacco smoke are at an increased risk of premature death. An estimated five hundred fifty West Virginia citizens die each year from exposure to secondhand tobacco smoke.
(b) The West Virginia Legislature finds that the United States Surgeon General’s 2006 report has determined that there is no risk-free level of exposure to secondhand smoke; the scientific evidence that secondhand smoke causes serious diseases, is massive and conclusive; separating smokers from nonsmokers, cleaning the air and ventilating buildings cannot eliminate secondhand smoke exposure; smoke-free workplace policies are effective in reducing secondhand smoke exposure; and smoke-free workplace policies do not have an adverse economic impact on the hospitality industry.
(c) The West Virginia Legislature also finds that the Environmental Protection Agency has determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are capable only of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in secondhand smoke. The 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 technology does not exist that can remove chemicals that cause cancer from the air. On June 30, 2005, an ASHRAE position paper on secondhand smoke concluded that, at present, the only means of eliminating health risks associated with indoor exposure is to eliminate all smoking activity indoors.
As used in this article:
(1) "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and that derives no more than ten percent of its gross revenue from the sale of food consumed on the premises. "Bar" includes, but is not limited to, taverns, nightclubs, cocktail lounges, adult entertainment facilities and cabarets.
(2) "Department" means the Department of Health and Human Resources.
(3) "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profits or a person who volunteers his or her services for a nonprofit entity.
(4) "Employer" means a person, business, partnership, association, or corporation, including a municipal corporation, trust, or nonprofit entity, that employs the services of one or more individual persons.
(5) "Enclosed area" means all space between a floor and a ceiling that is enclosed or partially enclosed with: (i) Solid walls or windows, exclusive of doorways; or (ii) solid walls with partitions and no windows, exclusive of doorways, that extend from the floor to the ceiling, including, without limitation, lobbies and corridors.
(6) "Enclosed or partially enclosed sports arena" means any sports pavilion, stadium, gymnasium, health spa, boxing arena, swimming pool, roller rink, ice rink, bowling alley, or other similar place where members of the general public assemble to engage in physical exercise or participate in athletic competitions or recreational activities or to witness sports, cultural, recreational, or other events.
(7) "Gaming equipment or supplies" means gaming equipment or supplies regulated by the West Virginia Lottery Commission, including, but not limited to, gaming tables, cards, dice, chips, shufflers, drop boxes or any other mechanical, electronic or other device or video lottery game.
(8) "Gaming facility" means an establishment where gaming equipment or supplies are operated for the purposes of accruing business revenue.
(9) "Healthcare facility" means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including, but not limited to, hospitals, rehabilitation hospitals, 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. "Healthcare facility" includes all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within healthcare facilities.
(10) "Place of employment" means any area under the control of a public or private employer that employees are required to enter, leave, or pass through during the course of employment, including, but not limited to, entrances and exits to places of employment, including a minimum distance, as set forth in section fifteen of this article, of fifteen feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited; offices and work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas. A private residence or home-based business, unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premises, is not a "place of employment".
(11) "Private club" means a not-for-profit association that: (A) Has been in active and continuous existence for at least three years prior to the effective date of this article, whether incorporated or not;
(B) The owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times;
(C) Is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain;
(D Only sells alcoholic beverages incidental to its operation; and
(E) Is managed by a board of directors, executive committee, or similar body chosen by the members at an annual meeting, has established bylaws, a Constitution, or both to govern its activities, and has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. 501.
(12) "Private residence" means the part of a structure used as a dwelling, including, without limitation: A private home, townhouse, condominium, apartment, mobile home, vacation home, cabin, or cottage. For the purposes of this definition, a hotel, motel, inn, resort, lodge, bed and breakfast or other similar public accommodation, hospital, nursing home, or assisted living facility is not a private residence.
(13) "Public place" means that portion of any building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned, in whole or in part, by private persons or entities, the State of West Virginia, or any other public entity and regardless of whether a fee is charged for admission, including a minimum distance, as set forth in section fifteen of this article, of fifteen feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited. A "public place" does not include a private residence unless the private residence is used to provide licensed child care, foster care, or other similar social service care on the premises. A "public place" includes, but is not limited to, hospitals, restaurants, retail stores, offices, commercial establishments, elevators, indoor theaters, libraries, museums, concert halls, public conveyances, educational facilities, nursing homes, auditoriums, enclosed or partially enclosed sports arenas, meeting rooms, schools, exhibition halls, convention facilities, polling places, private clubs, gaming facilities, all government owned vehicles and facilities, including buildings and vehicles owned, leased, or operated by the state or state subcontract, healthcare facilities or clinics, enclosed shopping centers, retail service establishments, financial institutions, educational facilities, ticket areas, public hearing facilities, public restrooms, waiting areas, lobbies, bars, taverns, bowling alleys, skating rinks, reception areas, and no less than seventy-five percent of the sleeping quarters within a hotel, motel, resort, inn, lodge, bed and breakfast, or other similar public accommodation that are rented to guests, but excludes private residences.
(14) "Restaurant" means:
(A) An eating establishment, including, but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, that gives or offers for sale food to the public, guests or employees; and
(B) A kitchen or catering facility in which food is prepared on the premises for serving elsewhere. "Restaurant" includes a bar area within the restaurant.
(15) "Retail tobacco store" means a retail establishment that derives more than eighty percent of its gross revenue from the sale of loose tobacco, plants, or herbs and cigars, cigarettes, pipes, and other smoking devices for burning tobacco and related smoking accessories and in which the sale of other products is merely incidental. "Retail tobacco store" does not include a tobacco department or section of a larger commercial establishment or any establishment with any type of liquor, food or restaurant license.
(16) "Smoke" or "smoking" means the carrying, smoking, burning, inhaling or exhaling of any kind of lighted pipe, cigar, cigarette, hookah, weed, herbs, or any other lighted smoking equipment.
(17) "State agency" means a state governmental entity, including any bureau, department, division, commission, agency, committee, office, board, authority, subdivision, program, council, advisory body, cabinet, panel, system, task force, fund, compact, institution, survey, position, coalition or other entity in the State of West Virginia.
(18) "Unit of local government" means any unit of local government within the state, including a county, county board of education, municipality, and any other authority, board, commission, district, office, public authority, public corporation, or other instrumentality of a county, county board of education, or municipality or any combination of two or more local governments.
§16-9G-4. Smoking in public places, places of employment and governmental vehicles prohibited.
No person may smoke in a public place or in any place of employment or within fifteen feet of any entrance to a public place or place of employment. No person may smoke in any vehicle owned, leased or operated by the state or a political subdivision of the state. Smoking is prohibited in indoor public places and workplaces unless specifically exempted by section eight of this article.
§16-9G-5. Posting of signs; removal of ashtrays.
(a) “No Smoking” signs or a sign consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it, shall be clearly and conspicuously posted in each public place and place of employment where smoking is prohibited by this article by the owner, operator, manager or other person in control of that place.
(b) Each public place and place of employment where smoking is prohibited by this article shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
(c) All ashtrays shall be removed from any area where smoking is prohibited by this article by the owner, operator, manager or other person having control of the area.
§16-9G-6. Smoking prohibited in student dormitories.
Notwithstanding any other provision of this article, smoking is prohibited in any portion of the living quarters, including, but not limited to, sleeping rooms, dining areas, restrooms, laundry areas, lobbies and hallways of a building used, in whole or in part, as a student dormitory that is owned and operated or otherwise used by a public or private institution of higher education.
§16-9G-7. Designation of other nonsmoking areas.
Notwithstanding any other provision of this article, an employer, owner, occupant, lessee, operator, manager, or other person in control of any public place or place of employment may designate a nonenclosed area of a public place or place of employment, including outdoor areas, as an area where smoking is also prohibited provided that such employer, owner, lessee or occupant shall conspicuously post signs prohibiting smoking in the manner described in section five of this article.
Notwithstanding any other provision of this article, smoking is allowed in the following areas:
(1) Private residences or dwelling places, except when used as a child care, adult day care, or healthcare facility or any other home-based business open to the public.
(2) Retail tobacco stores as defined in section three of this article in operation prior to the effective date of this article. The retail tobacco store shall annually file with the department by the January 31 an affidavit stating the percentage of its gross income during the prior calendar year that was derived from the sale of loose tobacco, plants, or herbs and cigars, cigarettes, pipes or other smoking devices for smoking tobacco and related smoking accessories. Any retail tobacco store that begins operation after the effective date of this article may only qualify for an exemption if located in a freestanding structure occupied solely by the business and smoke from business does not migrate into an enclosed area where smoking is prohibited.
(3) Private and multiprivate rooms in nursing homes and long-term care facilities that are occupied by one or more persons, all of whom are smokers and have requested in writing to be placed or to remain in a room where smoking is permitted and the smoke shall not infiltrate other areas of the nursing home.
(4) Hotel and motel sleeping rooms that are rented to guests and are designated as smoking rooms, provided that all smoking rooms on the same floor must be contiguous and smoke from these rooms must not infiltrate into nonsmoking rooms or other areas where smoking is prohibited. Not more that twenty-five percent of the rooms rented to guests in a hotel or motel may be designated as rooms where smoking is allowed. The status of rooms as smoking or nonsmoking may not be changed, except to permanently add additional nonsmoking rooms.
§16-9G-9. Enforcement; complaints.
(a) The department, state certified local board of health and local law-enforcement agencies shall enforce the provisions of this article and may assess fines pursuant to section ten of this article.
(b) Any person may register a complaint with the department, a state certified local board of health or local law-enforcement agency for a violation of this article. The department shall establish a telephone number that a person may call to register a complaint under this article.
(a) A person, corporation, partnership, association or other entity who violates section four of this article shall be fined pursuant to this section. Each day that a violation occurs is a separate and additional fine.
(b) A person who smokes in an area where smoking is prohibited under section four of this article shall be fined in an amount that is not less than $100 and not more than $250. A person who owns, operates or otherwise controls a public place or place of employment that violates section four of this article shall be fined:
(1) Not less than $250 for the first violation;
(2) Not less than $500 for the second violation within one year after the first violation; and
(3) Not less than $2,500 for each additional violation within one year after the first violation.
(c) A fine imposed under this section shall be allocated as follows:
(1) One half of the fine is distributed to the department; and
(2) One half of the fine is distributed to the enforcing agency.
The department, a state certified local board of health, local law-enforcement agency or any individual personally affected by repeated violations may institute, in a circuit court, an action to enjoin violations of this article.
§16-9G-12. Discrimination prohibited.
No individual may be discriminated against in any manner because of the exercise of any rights afforded by this article.
If a provision, clause or paragraph of this article is held invalid by a court of law, such validity shall not affect the other provisions of this article.
§16-9G-14. Local regulation.
(a) Any unit of local government may regulate smoking in public places, but that regulation must be no less restrictive than this article.
(b) In addition to any regulation authorized under subsection (a) any unit of local government, may regulate smoking in any enclosed indoor area used by the public or serving as a place of work if the area does not fall within the definition of a “public place” under section three of this article.
§16-9G-15. Entrance, exits, windows and ventilation intakes.
Smoking is prohibited within a minimum distance of fifteen feet from entrances, exits, windows that open and ventilation intakes that serve an enclosed area where smoking is prohibited under this article so as to ensure that tobacco smoke does not enter the area through entrances, exits, open windows or other means.
The department shall propose legislative rules for approval by the Legislature in accordance with the provisions of article three, chapter twenty-nine-a of this code, necessary for the administration of this article.
NOTE: The purpose of this bill is to enact the Smoke Free West Virginia Act, prohibiting smoking in public places, places of employment and government vehicles.
§16-9G-1 through §16-9G-16 are new; therefore, strike-throughs and underscoring have been omitted.