H. B. 2664
(By Delegate Petersen)
[Introduced February 23, 1995; referred to the
Committee on 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 limiting the involuntary exposure of the public to smoke
from lighted tobacco products; providing a title; declaring
certain findings; establishing a purpose; limiting smoking
in certain areas; defining certain terms; permitting smoking
in certain enclosed areas; imposing certain duties on
proprietors and certain other persons; providing criminal
penalties; providing for a private right of action;
providing that remedies are not exclusive and that provisions are not preemptive; and requiring the secretary
of health and human resources to promulgate necessary 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
and use of lighted tobacco smoking materials in enclosed areas
used by the public is a nuisance and a threat to the health,
safety and welfare of the citizens of this state. The surgeon
general of the United States has concluded that exposure to
secondary tobacco smoke is a cause of disease, including lung
cancer, in healthy nonsmokers and that the simple separation of
smokers and nonsmokers within the same air space may reduce, but
does not eliminate, the exposure of nonsmokers to secondary tobacco smoke.
(b) The purpose of this article is to limit the possession
and use of lighted tobacco smoking materials in enclosed places
used by the public and workplaces to reduce the involuntary
exposure of the citizens of this state to secondary tobacco smoke
and thereby to protect their health, safety and welfare.
§16-9B-3. Limitation on smoking in certain enclosed areas.
(a) Except in areas properly designated as smoking permitted
areas as provided in section four of this article, or in an area
described in subsection (b) of this section, and except for
restaurants with fifty or fewer seats which shall post a sign at
the entrance that smoking is permitted or "Smoking Facility," no
person may possess or use lighted smoking materials in any form,
including, but not limited to, lighted cigarettes, lighted
cigars, lighted pipes or other lighted tobacco products in any
enclosed area used by, or open to the public, including enclosed
areas of:
(1) Commercial establishments where the square footage of
the enclosed area of the business premises of the commercial
establishment is seven thousand five hundred square feet or more;
(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 not
limited 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) Enclosed indoor workplaces; and
(12) All other enclosed areas which are posted as
"No-Smoking" areas by persons who are legally authorized to
prohibit smoking in those enclosed areas.
(b) Unless the state fire marshal or a specific statute,
ordinance, rule, regulation or order prohibits the activity,
smoking is allowed and the possession and use of lighted smoking
materials is allowed in the following places:
(1) Areas which are specifically designated as smoking areas
in accordance with section four of this article;
(2) Rooms and buildings which are used solely as private
residences;
(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; and
(4) Stages located in a building other than a hospital,
school, college or other educational facility, when the smoking
by performers is part of a theatrical production.
For the purpose of this article, the term "smoking" means
the activity of burning tobacco causing it to emit smoke which
may be inhaled by a person and the term "lighted smoking
materials" means and includes any burning tobacco product capable
of emitting smoke.
§16-9B-4. Designation of smoking areas.
(a) Smoking areas may be designated by proprietors or other
persons in charge of enclosed areas 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 court order.
(b) Notwithstanding subsection (a) of this section, areas in
which smoking is permitted may not include:
(1) Vehicles of public transportation;
(2) Elevators;
(3) Hospitals and other long-term care facilities, except
for hospitals owned and operated by the federal government;
(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;
(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; and
(7) Buildings or portions thereof owned, leased or rented by
the state.
(c) Subsection (a) of this section may not be construed to
require a proprietor or other person to establish and designate
a portion of an enclosed building or structure as an area in
which smoking is permitted.
(d) No more than fifty percent of any enclosed seating area
of a restaurant having more than fifty seats may be designated as an area where smoking is permitted.
(e) Guest rooms within each hotel, as defined in section
three, article eighteen, chapter seven of this code, may be
designated as areas in which smoking is permitted: Provided,
That each hotel shall have available to guests a specified number
of nonsmoking rooms each day of the year.
(f) In enclosed areas in which smoking areas are designated,
existing barriers and existing ventilation systems to the outside
shall be used to limit the involuntary exposure to tobacco smoke
of persons who do not smoke. No waiting area may be designated
as a smoking area and nonsmoking areas must be contiguous to
entry and waiting areas.
(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,
retail tobacco stores in which the primary activity is the sale
or promotion of tobacco products or accessories at retail and in
which the sale or promotion of other products is merely
incidental, 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 by a 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 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 permitted area shall post a sign clearly
indicating the area as a designated smoking permitted area.
(i) The secretary of the department of health and human
resources shall grant an administrative variance from the strict
interpretation of the provisions of subsection (f) of this
section for an area designated as a smoking permitted area for a
period not to exceed twenty-four months if:
(1) Compliance would create undue hardship on the business;
(2) The proprietor or other person in charge has made a good faith effort to comply with the provisions of this section; and
(3) The cost of immediate compliance is unreasonable.
Where the secretary has issued a variance, the proprietor or
other person in charge of an area designated as a smoking
permitted area who is granted the variance shall not be subject
to the penalties or remedies provided by section six or seven of
this article for any conduct occurring during the effective
period of the variance which may otherwise violate the provisions
of subsection (f) of this section.
§16-9B-5. Duties imposed upon proprietors and other persons in
control of enclosed areas.
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 sign
at each entrance to the area which clearly and conspicuously
notifies people that smoking is prohibited in that area. A sign
shall also be posted at entrances where smoking is allowed which
clearly and conspicuously notifies people that smoking is allowed
in a properly designated smoking area.
§16-9B-6. Penalties.
(a) Any person who willfully violates the provisions of section three of this article is guilty of a misdemeanor, and,
upon conviction thereof, 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
secretary of the department of health and human resources 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.
§16-9B-7. Private right of action.
Any person aggrieved by a violation of section four or
section five of this article or a rule promulgated by the
secretary of the department of health and human resources
pursuant thereto may bring a civil action to recover for any
personal injury or injuries sustained as a result of the
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 ordinances, rules, orders or laws may, except for levying
a fee or tax on tobacco or tobacco products, 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 by posting as described in subdivision (12), subsection
(a), section three of this article.
§16-9B-9. Rules.
The secretary of the department of health and human resources
shall promulgate rules, in accordance with the provisions of
chapter twenty-nine-a of this code, to implement the provisions
and intent of this article.
NOTE: The purpose of this bill is to reduce the involuntary
exposure to tobacco smoke of persons in public places. A general
limitation on smoking is established for most enclosed areas of
buildings accessible to the public. The bill allows for the
designation of specific areas in public buildings in which
smoking is permitted. Smoking is not permitted in hospitals,
day-care centers, elevators, public transportation vehicles and
certain educational institutions. In private clubs and establishments in which beer is sold, smoking may be permitted
throughout the facility if notice to potential patrons are
posted. The bill also provides for criminal penalties for
violations and requires the secretary of health and human
resources to promulgate necessary rules.
Article 9B is new; therefore, strike-throughs and
underscoring have been omitted.