H. B. 2431
(By Mr. Speaker, Mr. Chambers and Delegates Kessel,
Leach, Huntwork and Brum)
[Introduced March 2, 1993; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article nine-b, relating
to designation of no-smoking areas and of smoking areas;
declaration of findings; restriction of smoking in certain
areas; duties imposed upon proprietors and other persons;
criminal penalties; providing that remedies not exclusive
and that article not preemptive; injunctive relief; and
authorizing the commissioner of the bureau of public health
to promulgate rules.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article nine-b, to read
as follows:
ARTICLE 9B. WEST VIRGINIA CLEAN INDOOR AIR ACT.
§16-9B-1. Short title.
This article shall be known and may be cited as the "West
Virginia Clean Indoor Air Act."
§16-9B-2. Declaration of legislative findings and purpose.
(a) The Legislature finds and declares that the possession
of lighted smoking materials in enclosed areas used by, or open
to, the public is a source of discomfort and inconvenience in the
indoor environment, a public nuisance and, most importantly, a
hazard to the public health, safety and welfare.
The Legislature further finds that the United States surgeon
general has concluded that involuntary smoking is a cause of
disease, including lung cancer, in healthy nonsmokers.
The Legislature further finds that the United States
environmental protection agency has classified environmental
tobacco smoke as a Group A (known human) carcinogen.
The Legislature further finds that the United States surgeon
general has concluded that the simple separation of smokers and
nonsmokers within the same air space may reduce, but does not
eliminate, the exposure of nonsmokers to environmental tobacco
smoke.
The Legislature further finds that a survey of West
Virginians conducted in one thousand nine hundred ninety-one
concluded that smoke from someone else's cigarettes bothers about
seventy-five percent of West Virginians, that about eighty-five
percent of West Virginians think that the effects of tobacco
smoke on nonsmokers are harmful, that about seventy-five percentof West Virginians would favor legislation requiring restaurants
to have nonsmoking sections and that about eighty-two percent of
West Virginians would support legislation to limit smoking in
workplaces.
(b) The purpose of this article is to protect the health of
the public by restricting the possession of lighted smoking
materials in certain places accessible to the public and certain
workplaces.
§16-9B-3. Restriction of smoking in certain enclosed areas.
(a) Except in a smoking area properly designated pursuant to
section four of this article, or in an area described in
subsection (b) of this section, no person may possess lighted
smoking materials in any form, including, but not limited to,
lighted cigarettes, lighted cigars, lighted pipes or other
lighted tobacco products in any of the following enclosed areas
used by, or open to the public:
(1) Commercial establishments;
(2) Vehicles of public transportation including, but not
limited to, trains, buses, limousines, taxicabs and ferries;
(3) Elevators;
(4) Libraries, museums, auditoriums and art galleries;
(5) Hospitals and other health-care facilities;
(6) Indoor places of entertainment or recreation including,
but not limited to, gymnasiums, theaters, concert halls, arenas
and swimming pools;
(7) Educational facilities of all types including, but notlimited to, buildings at which pupils or students receive
preschool, kindergarten, primary, elementary and secondary
education (K-12), secondary vocational education, postsecondary
vocational education, adult basic education, adult occupational
education, adult technical preparatory education, higher
education, undergraduate college education, postgraduate and
professional college education which are privately or publicly
owned;
(8) Day care centers, as defined in section two, article
two-b, chapter forty-nine of this code;
(9) Hotels, as defined in section three, article eighteen,
chapter seven of this code;
(10) Restaurants subject to the provisions of article six of
this chapter, excluding seating in areas which are used primarily
for the sale and consumption of beer or other alcoholic
beverages;
(11) All other enclosed indoor areas used by the public or
serving as places of work; and
(12) All other enclosed areas which are posted with "No-
Smoking" signs or similar signs by persons who own or control the
area pursuant to the appropriate legal authority.
(b) Unless the possession of lighted smoking materials is
prohibited by the state fire marshal or by any statute,
ordinance, rule, regulation or order, in the following areas, the
restrictions of subsection (a) of this section do not apply to:
(1) Areas which are specifically designated as smoking areasin accordance with section four of this article;
(2) Rooms and buildings which are used solely as private
residences and not for commercial purposes involving visitation
of the rooms and buildings by customers;
(3) Rooms or halls located in buildings other than
hospitals, schools, colleges or other educational facilities when
the rooms or halls are used for private social functions, if the
seating arrangements are determined by the sponsors of the
functions and not by the owner or lessee of the premises;
(4) Factories and warehouses, except that the West Virginia
commissioner of the bureau of public health shall promulgate
rules pursuant to chapter twenty-nine-a of this code to restrict
or prohibit smoking in those places of work where proximity of
workers or inadequacy of ventilation may cause or exacerbate
smoke pollution detrimental to the health, safety, welfare,
comfort or convenience of employees; and
(5) Smoking by performers upon a stage located in a building
other than a hospital, school, college or other educational
facility, when the smoking is part of a theatrical production.
§16-9B-4. Designation of smoking areas.
(a) Smoking areas may be designated by proprietors or other
persons in charge of the places specified in subsection (a) of
section three of this article, except in areas in which smoking
is otherwise prohibited by the state fire marshal or by any
statute, ordinance, rule, regulation or order.
(b) Notwithstanding subsection (a) of this section, smokingareas may not be designated in:
(1) Vehicles of public transportation;
(2) Elevators;
(3) Hospitals and other health-care facilities;
(4) Day care centers, as defined in section two, article
two-b, chapter forty-nine of this code;
(5) Publicly owned or privately owned educational facilities
at which pupils or students receive preschool, kindergarten,
primary, elementary and secondary education (K-12) or secondary
vocational education; and
(6) Publicly owned or publicly leased educational facilities
at which students receive postsecondary vocational education,
adult basic education, adult occupational education, adult
technical preparatory education, higher education, undergraduate
college education, postgraduate or professional college
education;
(c) Subsection (a) of this section may not be construed to
require a proprietor or other person in charge of a particular
place specified in subsection (a) of section three of this
article to designate a smoking area in that place.
(d) Within each restaurant, in those areas which are used
primarily for the sale and consumption of meals, no more than
fifty percent of the seating may be designated as a smoking area.
(e) No more than fifty percent of the guest rooms within
each hotel, as defined in section three, article eighteen,
chapter seven of this code, may be designated as smoking areas.
(f) In those enclosed areas in which smoking areas are
designated, existing barriers and ventilation systems to the
outside shall be used to minimize the exposure to smoke to
individuals who occupy adjacent no-smoking areas. If a building
or room is divided into smoking areas and no-smoking areas, the
no-smoking areas of that building or room shall be contiguous
with one another to ensure that no customer, employee or other
member of the public is required to pass through a smoking area
of that building or room to reach a no-smoking area of that
building or room. Moreover, the proprietor or other person in
charge of a room may not designate as a smoking area any portion
of the space where one or more individuals would be normally
expected, or directed, to wait in line for, or in line while
receiving, service of any kind, whether or not the service
involves the exchange of money. If a particular enclosed area
used by, or open to, the public and controlled by a proprietor
consists of a single room, no more than one half of the room may
be designated as a smoking area.
(g) Except for establishments operated by retailers of
nonintoxicating beer who hold valid licenses, issued pursuant to
the provisions of article sixteen of chapter eleven of this code,
and private clubs holding valid licenses issued pursuant to the
provisions of article seven of chapter sixty of this code, no
enclosed area specified in subsection (a) of section three of
this article may be designated as a smoking area in its entirety:
Provided,
That if any private club or establishment operated bya retailer of nonintoxicating beer is designated as a smoking
area in its entirety, this designation shall be conspicuously
posted at all entrances normally used by the public:
Provided,
however,
That the provisions of subsection (d) of this section
shall apply if a private club or an establishment operated by a
retailer of nonintoxicating beer also serves as a restaurant.
(h) The proprietor or other person in charge of an area
designated as a smoking area shall post a sign clearly indicating
the area as a designated smoking area.
§16-9B-5. Duties imposed upon proprietors and other persons in
control of enclosed areas.
(a) The proprietor or other person having control of each
enclosed area specified in subdivisions (1) through (11) of
subsection (a) of section three of this article shall post a
conspicuous sign at each entrance to the area indicating that
smoking is prohibited in that area except smoking that may be
allowed in a properly designated smoking area.
(b) To encourage further compliance with the provisions of
section three of this article, the proprietors and other persons
having control of enclosed areas specified in subdivisions (1)
through (11) of subsection (a) of section three shall also post
conspicuous signs within the area indicating that smoking is
prohibited therein.
§16-9B-6. Penalties.
(a) Any person who violates the provisions of section three
of this article is guilty of a misdemeanor, and, upon convictionthereof, shall be fined not less than twenty dollars nor more
than one hundred dollars for each offense.
(b) Any person who willfully violates the provisions of
section four or five of this article or a rule promulgated by the
commissioner of the bureau of public health is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than twenty-five dollars nor more than two hundred fifty
dollars for each offense. Every successive day of such willful
violation constitutes a separate offense.
§16-9B-7. Private right of action.
Any person aggrieved by a violation of any provision of this
article or a rule promulgated by the commissioner of the bureau
of public health pursuant to this article may bring a civil
action to recover for any personal injuries sustained as a result
of such violation.
§16-9B-8. Remedies not exclusive; article not preemptive.
(a) Nothing in this article impairs any other right to
relief which exists under the common law or any other statute,
ordinance or rule.
(b) It is not the intent of the Legislature to preempt the
field of regulation of smoking or tobacco use. Any municipal
corporation or other subdivision of this state with authority to
adopt rules, orders or laws may use that authority to regulate
smoking or tobacco use in any manner more restrictive than the
provisions of this article. This article does not permit smoking
or tobacco use where it is otherwise restricted by law or byposting.
§16-9B-9. Injunctive relief.
The West Virginia commissioner of the bureau of public
health, the attorney general, a county health officer in the
county wherein violations occur, a municipal health officer in
the municipality wherein violations occur, the prosecuting
attorney of the county wherein violations occur or any affected
party may institute an action in the circuit court of the county
wherein violations of this article or of a rule promulgated by
the commissioner of the bureau of public health, pursuant to this
article occur, to enjoin repeated violations of this article or
rules promulgated hereunder. If it appears to the court that a
defendant has knowingly violated any provisions of this article
or rule promulgated hereunder, the court shall also grant such
attorneys fees as it deems appropriate.
§16-9B-10. Rules; construction of article.
The commissioner of the bureau of public health shall
promulgate rules, in accordance with the provisions of chapter
twenty-nine-a of this code, to facilitate the enforcement of the
provisions and intent of this article. The provisions of this
article are to be liberally construed.
NOTE: The purpose of this bill is to provide, at a minimum,
that smoking be restricted in portions of certain areas
accessible to the public. A general restriction is placed on
smoking in most areas accessible to the public. Provisions are
then made for the designation of smoking areas in most public
areas. In the case of many private clubs and retailestablishments at which beer is sold, the entire premises may be
designated as a smoking area, if properly posted. Additional
provisions are made for civil and criminal enforcement, and the
promulgation of rules by the commissioner of the bureau of public
health.
This article is new; therefore, strike-throughs and
underscoring have been omitted.