Senate Bill No. 360
(By Senator Foster)
[Introduced January 27, 2010; referred to the Committee on Health
and Human Resources; and then to the Committee on Finance.]
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
§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
(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
(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
(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
(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
(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
(D) Only sells alcoholic beverages incidental to its
(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 shall not be considered 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
(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
(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
§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
§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
§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
)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
(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
(1) One half of the fine is distributed to the department; and
(2) One half of the fine is distributed to the enforcing
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
(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
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.
This article is new; therefore, strike-throughs and
underscoring have been omitted.