2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310
This act may be cited as the Uniform Clean Indoor Air Act of 19___.
The possession of lighted smoking materials in public places is a nuisance, and is hazardous to the public health, safety, comfort, convenience and indoor environment. The purpose of this act is to protect the public by restricting the possession of lighted smoking materials to designated smoking areas within public places.
Comment
This act is intended to protest the public from the involuntary inhalation of tobacco smoke in places which are normally frequented by the general public. While the act is not intended to restrict smoking in purely private places, the public has the right to carry on its normal daily activities without being subjected to the annoyance and adverse health effects associated with ambient tobacco smoke. Although the act is directed primarily to tobacco smoke, its coverage is broad enough to reach all forms of lighted smoking materials.
(a) Except as provided in subsection (b) below, the possession of lighted smoking materials in any form, including but not limited to the possession of lighted cigarettes, cigars, pipes or other tobacco products, is prohibited in any of the following places used by or open to the public:
(i) any commercial establishment, including but not limited to retail stores, restaurants, banks, office buildings and offices;
(ii) any vehicle of public transportation, including but not limited to trains, buses, limousines for hire, taxicabs, and ferries;
(iii) elevators;
(iv) libraries, educational facilities, museums, auditoriums, and art galleries;
(v) any public area of a health-care facility, including but not limited to laboratories associated with the rendition of health-care treatment, hospitals, rest homes, doctors' offices, and dentists' offices;
(vi) any indoor place of entertainment or recreation, including but not limited to gymnasiums, theaters, concert halls, arenas and swimming pools;
(vii) any other enclosed indoor area used by the public or serving as a place of work.
Comment
This section was adapted from the Minnesota Clean Indoor Air Act, which has been in effect since 1975. The prohibitions of this act are broad and extend beyond governmentally owned or operated facilities. The policy of this act requires that the restrictions extend to places generally frequented by the public, without regard to whether the place is owned by the government. The health hazards and inconveniences of ambient tobacco smoke are unrelated to public or private ownership of enclosed facilities. As a practical matter, the hazards are greater in privately owned places because members of the public spend more time there.
This act differs from the Minnesota act in two basic respects. The Minnesota approach prohibits smoking in any "public place," and defines "public place" as "any enclosed, indoor area used by the public or serving as a place of work." The Minnesota act then provides a nonexclusive listing of public places. While we believe the Minnesota act is legally sound, we have opted to take the additional step of setting forth with greater specificity those places in which smoking is banned. To maintain a broad scope, the Minnesota definition of "public place" is still included as one category of places where smoking is prohibited. Thus it should be more difficult to avoid the reach of the statute by arguing that a particular establishment is not a "public place." The Minnesota act and this act are of similar scope, but we believe that the more extensive listing of categories in this act adds clarity.
The Minnesota act provides for exceptions in two separate sections. This act lists all exceptions in one section.
(b) The restrictions of subsection (a) shall not apply to:
(i) areas which are specifically designated as smoking areas in accordance with section (4) of this act;
(ii) an entire room or hall which is used for private social functions, provided that the seating arrangements are under the control of the sponsor of the function and not of the proprietor or person in charge of the place;
(iii) limousines for hire and taxicabs, where the driver and all passengers affirmatively consent to smoking in such vehicles;
(iv) a private, enclosed office, occupied exclusively by smokers, even though such office may be visited by nonsmokers, provided that this exception shall not be construed to permit smoking in the reception areas of lobbies or offices;
(v) any private, enclosed office not occupied exclusively by smokers, provided that nonsmoking persons normally occupying said office affirmatively consent to smoking there;
(vi) factories, warehouses, and similar places of work not usually frequented by the general public, except that the Department of Labor and Industry [or your equivalent state or local agency or authority] shall, in consultation with the state Board of Health [or your equivalent state or local agency], establish rules to restrict or prohibit smoking in those places of work where proximity of workers or inadequacy of ventilation may cause smoke pollution detrimental to the health, comfort or convenience of nonsmoking employees;
(vii) performers upon the state, provided that the smoking is part of a theatrical production.
Comment
This section is intended to improve the form of the Minnesota act by coordinating all exceptions within one section. Certain exceptions have been adapted from other statutes in the belief that they are fair and consistent with the policies of this act.
All state statutes recognize an exception for "designated smoking areas." This exception respects the privileges of the smoking population to the extent that smokers may be accommodated without interfering with the rights of the nonsmoking majority. The rights of smokers are protected by the specific procedures set forth in section (4) of this act for the establishment of designated smoking areas.
The "private gathering" exception is adapted from both the Minnesota and Alaska acts. The wording of the Minnesota act has been adopted, requiring seating arrangements to be under the control of the private sponsor. This requirement is believed to tighten
up the use of this exception so as to limit its application to purely private affairs such as weddings and banquets. Nothing in this act should be construed as prohibiting a private sponsor from designating certain areas as smoking or no-smoking areas.
There is no reason consistent with the policy of this act to prohibit smoking in limousines for hire and taxicabs where neither the driver nor any other passenger objects. This exception, however, should not be read to require the owner or operator of any limousine or taxicab to permit smoking within the vehicle.
The private office exception is adopted from the Minnesota act. A person should be free to smoke in his/her own private office even though (s)he may occasionally be visited by nonsmokers. This exception is limited to private offices, and should not be construed as extending to reception areas and lobbies even if all workers within a suite of officers are smokers.
The private office exception is broader than the Minnesota exception. The requirement that the office be occupied exclusively by smokers is relaxed in situation where a private office is occupied by both smokers and nonsmokers, but the nonsmokers affirmatively consent to others' smoking.
Because of the different physical structure of warehouses and factories and the types of activities conducted in such buildings, the effects of ambient tobacco smoke may be insignificant in such places. Thus an exception is created for warehouses and factories. However, because the physical structure of warehouses and factories varies, the state Department of Labor and Industry (or equivalent state or local agency or authority) is empowered to restrict or prohibit smoking in warehouses and factories where such restrictions are reasonably necessary to protect the health, comfort or convenience of nonsmoking employees.
Smoking as part of a theatrical production may, in some cases, be a form of artistic expression which should not be prohibited. In any event, the harm created is not sufficiently serious so as to justify the application of a statutory ban on this type of activity.
(4) Designation of Smoking Areas:
(a) Smoking areas may be designated by proprietors or other persons in charge of places within section (3)(a), except in places in which smoking is otherwise prohibited by the fire marshall, or by other statute, ordinance or regulation.
(b) The immediately preceding subsection shall not be construed to require persons in charge of places within section (3)(a) to provide smoking areas.
(c) Where smoking areas are designated, existing barriers and ventilation systems shall be used to minimize the irritating and toxic effects of smoke in adjacent no-smoking areas. In the case of places consisting of a single room, the provisions of this section shall be considered met if no more than one-half of the room is reserved and posted as a smoking area.
(d) No public place within section (3)(a), other than a bar [in states which do not legally recognize "bars" per se, substitute "other tan a restaurant which derives more than 50% of its gross receipts from the sale of alcoholic beverages"], shall be designated as a smoking area in its entirety; provided that, if a bar is designated as a smoking area in its entirety, this designation shall be conspicuously posted on all entrances normally used by the public.
(e) Notwithstanding any other provision of this section (4), where smoking areas can be established in any governmentally owned or operated facility without subjecting the public to the hazards and inconveniences of ambient smoke, the person in charge of said public place shall designate smoking areas in accordance with the provisions of section (5).
Comment
This section is intended to accommodate, to the extent possible, both the smoking and the nonsmoking populations. This is accomplished by providing for the designation of smoking areas. This section makes express the requirement that existing physical barriers and ventilation systems to be fully utilized in order to minimize public exposure to ambient tobacco smoke. In this manner the nonsmoking population will be afforded maximum protection, while at the same time the smoking population may be accommodated. A special exception is provided for bars, in view of the special use of such premises and their unique traditions.
The requirement that persons in charge of governmentally owned or operated facilities shall designate smoking areas wherever possible is controversial. Although owners of private facilities need not designate smoking areas, some believe that smoking should be permitted in governmentally owned buildings wherever the designation of smoking areas is practicable. It should be noted, however, that although smokers should be accommodated wherever possible, the paramount concern is for the protection of the nonsmoking population. Although private owners cannot be required to accommodate smokers, it is the opinion of some of the authors of this act that persons in charge of governmentally operated facilities should be required to accommodate smokers wherever feasible. Each legislative body must make its own decision on this issue.
(5) Responsibility of Proprietors:
The proprietor or other person having control of a place within section (3)(a) shall:
(a) arrange seating to provide a smokefree area in accordance with section (3), and provide a seat in a smokefree area for all persons requesting such a seat; and,
(b) prominently post a "No-Smoking" sign or signs in sufficient numbers so as to be easily visible from all sections of the "no-smoking" area. "No-Smoking" signs shall be no smaller than eight (8) inches by ten (10) inches, with lettering no smaller than one (1) inch. The letters shall be of a color contrasting with the color of the background of the sign; and,
(c) request persons smoking in violation of this act to stop.
Comment
This section specifically allocates the responsibilities of persons in charge of places within section (3)(a). This section also affirms the right of every person to be accommodated in a smokefree area. Potential vagueness in the Minnesota act is avoided by deleting the requirement that proprietors make reasonable efforts to protect nonsmokers by "any other means which may be appropriate."
The responsibilities set forth in this section, however, merely establish minimum requirements. Thus, for example, a proprietor is not limited to merely asking a person smoking in violation of the act to refrain. A proprietor may also eject the offender, notify appropriate authorities, or take whatever other means (s)he deems necessary to halt or prevent violations of this act.
(a) Any person who willfully violates the provisions of section (3) shall be guilty of a petty misdemeanor [or the least serious misdemeanor within the jurisdiction], and shall be punished by a fine of not less than $10 nor more than $100 for each offense.
(b) Any person who willfully violates the provisions of the section (5) of this act shall be guilty of a petty misdemeanor [or the least serious misdemeanor within the jurisdiction], and shall be punished by a fine of not less than $25 nor more than $250 for each offense.
(c) Enforcement proceedings under this section may be initiated by the sworn complaint of an aggrieved citizen or by citation by any peace officer. The [appropriate local judicial authority] may establish procedures for the payment of fines by mail.
Comment
This section provides a monetary penalty for willful violations of this act. The offense is intended to be no more serious than a traffic violation, and in some jurisdictions may be civil rather than criminal in nature. It is intended, however, that private citizens be enabled to swear out complaints. Empowering private citizens to swear out complaints will make this act largely self-enforcing. Without this mechanism, enforcement would be more burdensome and in some situations impractical. Section (c) may be redundant in jurisdictions where private citizens are already able to swear out complaints, and should be deleted.
Any person aggrieved by a violation of any provision of this act may bring an action in [specify appropriate local court] to recover for personal injuries sustained as a result of the violation. Punitive damages shall not be allowed in cases brought solely pursuant to this section.
Comment
Private actions are believed to be the most effective enforcement mechanism because they ease the burden upon traditional enforcement agencies, and because they provide greater deterrence. While punitive damages are not allowed under this section, such damages may still be recovered if otherwise permissible under traditional common law causes of action.
(8) Cumulative Nature of Statutory Remedy:
The right of action created in section (7) shall not impair any other right to relief which exists under common law, or under any other statute, ordinance or regulation.
Comment
This section preserves all other causes of action which would otherwise be available to an injured party. Notwithstanding the proscription of section (7), punitive damages may be awarded, applying traditional standards, provided that they are awarded in connection with a cause of action not based solely upon section (7) of this act.
The state commissioner of health, a local board of health [or equivalent local authority], or any affected party may institute an action in [specify appropriate local court] to enjoin repeated violations of section (5).
Comment
Any person may act as a "private attorney general" to request a court of competent jurisdiction to enjoin a proprietor to comply with the provisions of section 5 of this act. The "private attorney general" is the most effective enforcement mechanism and will allow this act to be enforced without burdening traditional enforcement agencies.
The provisions of this act are severable, and it is intended that if any part of this act is held to be in violation of the state or federal constitution [or other superseding body of law, such as municipal characters, etc.]., then the remaining parts shall remain in full force and effect.
2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310