Senate Bill No. 260
(By Senators Walker and Holliday)
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[Introduced March 3, 1993; referred to the Committee
on Health and Human Resources; and then to the Committee
on the Judiciary.]
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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 retail establishments at which beer is sold, the entire premises may bedesignated 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.