Senate Bill No. 493
(By Senators Wiedebusch and Bowman)
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[Introduced February 20, 1995; referred to the Committee
on Government Organization.]
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A BILL to amend article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto nine new sections, designated sections eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen and sixteen, relating to smoking; definitions; regulation of smoking in public places and places of employment; nonregulated areas; posting signs; enforcement; penalties; preemption; and severability.

Be it enacted by the Legislature of West Virginia:
That article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto nine new sections, designated sections eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen and sixteen, to read as follows:

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.

§16-9A-8. Definitions.
As used in this article, the following terms have the following meanings:
(a) "Bar" means a place, or that portion or specified area of a restaurant, motel, hotel, convention center or resort, which is used primarily to serve liquor or other alcoholic beverages, irrespective of whether or not food is also served there.
(b) "Common work area" means any enclosed area on the premises of a place of employment where two or more employees are assigned to sit or otherwise be present in the performance of their duties, and where the employees share common work spaces, equipment or facilities such that each employee is aware of or readily able to observe the activities of others taking place in that work area.
(c) "Enclosed area" means all space which is enclosed on all sides by solid walls, windows or floor-to-ceiling partitions, irrespective of the size of the area and of any doorway, stairway or passageway providing a means of ingress and egress to the area.
(d) "Person" means any individual, partnership, association or corporation.
(e) "Place of employment" means any indoor area under the control of an employer which employees normally frequent during the course of employment, including, but not limited to, any work area, employee lounge, employee rest room, conference room, class room, employee cafeteria and employee hallway. A private residence is not a "place of employment" within the meaning of this subdivision unless a child care or health care facility is operated therein or unless it is a common area of a multiple dwelling which contains ten or more dwelling units.
(f) "Private function" means any wedding, party, testimonial dinner and any other similar gathering in which the seating arrangement is under the control of the organizer or sponsor of the event and not the person who owns, manages, operates or otherwise controls the use of the place in which the function is held.
(g) "Public conveyance" includes any bus, taxi, train, trolley, airplane, ferry, boat and any other vehicle used to transport the public.
(h) "Public place" means any enclosed indoor area to which the general public is invited or permitted, including, but not limited to, any state and local government building, educational facility, restaurant, bowling center, retail store, public conveyance, auditorium, arena and meeting room. A private residence is not a public place within the meaning of this statement unless a child care or health care facility is operated therein.
(i) "Smoking" means the act of inhaling the smoke from or possessing a lighted cigarette, cigar, pipe or any other form of tobacco or similar substance used for smoking.
(j) "Smoking area" means any designated area meeting the requirements of sections nine, ten and eleven of this article.
(k) "Tobacco business" means any sole proprietorship, corporation, partnership or other enterprise in which a substantial activity is the sale, manufacture, marketing, distribution or promotion of tobacco, tobacco products and accessories either for wholesale or retail markets.
(l) "Tobacco products" means all consumer products using or composed of tobacco, including cigarettes, pipe tobacco, chewing tobacco and smokeless tobacco which are manufactured for sale either at wholesale or retail.
§16-9A-9. Regulation of smoking in public places.
In all enclosed areas in public places during the times in which the public is invited or permitted, smoking shall be regulated in accordance with the provisions below.
(a) Smoking may not be permitted in public means of mass transportation, including rapid transit, trains and buses: Provided, That this prohibition may not apply to taxi cabs, limousines or any other private conveyance.
(b) In retail stores, other than retail tobacco stores and restaurants, which are greater than ten thousand square feet, smoking shall be prohibited, unless the owner or proprietor designates the store as a smoking permitted area. Any food service area or restaurant located in a retail store shall be subject to the restaurant provisions of this article.
(c) In any restaurant with an indoor seating capacity of more than one hundred persons, smoking shall be permitted in any part of the restaurant which constitutes a bar as defined in section eight, in a contiguous area designated for smoking, so long as the area contains at least fifty percent of the indoor seating capacity of the restaurant. A proprietor or other designated employee may, in his or her discretion, permit smoking in an area other than that designated for smoking, where customers request to be seated in a smoking area, at a time when the only available seats are located, in whole or in part, in the nonsmoking section. A proprietor may only accommodate such a party when the available seating is in an area contiguous to the designated smoking area of the restaurant. Every restaurant with a seating capacity or more than one hundred patrons permitting smoking therein in accordance with the provisions of this subsection, shall post signs indicating that nonsmoking sections are available, in addition to any other signs as required by section twelve. When an employee responsible for seating arrangements is on duty, each patron, prior to being seated, shall be asked his or her preference regarding seat locations in a smoking or nonsmoking section. Smoking may be permitted in all areas of any restaurant with an indoor seating capacity of one hundred patrons or fewer. The proprietor of such an establishment shall post signs at the entrance and at appropriate locations within the premises indicating that smoking is permitted therein. An owner of a restaurant with an indoor seating capacity of one hundred or fewer, who is not otherwise subject to the smoking restrictions of this section, may voluntarily choose to regulate or ban smoking in his or her establishment in accordance with the provisions pertaining to restaurants with an indoor seating capacity or more than one hundred patrons.
(d) In hotels and motels, smoking in public areas shall be permitted in a contiguous area designated for smoking, so long as the area, to the extent reasonably practicable, is not within a twenty-foot radius of that part of what is commonly referred to as the front desk or registration desk to which the public has access, and so long as the smoking area does not constitute more than fifty percent of any area commonly called a lobby. Proprietors shall make available smoking or nonsmoking guest rooms in hotels and motels to customers who request them.
(e) Smoking may be permitted only in designated smoking areas of libraries, museums and galleries.
(f) In motion picture theaters, concert halls, auditoriums and buildings primarily used for, or designed for the primary purpose of, exhibiting movies, stage drama, musical recital, dance, lecture or other similar performance, except when smoking is a part of a theatrical production, smoking may be permitted only in a contiguous area designated for smoking, so long as the area contains no more than fifty percent of any area commonly called a lobby.
(g) In convention halls, smoking may be permitted in contiguous areas designated for smoking, so long as the areas constitute no more than fifty percent of the seating capacity or floor space open to the public for a particular event taking place within the convention hall; and in an area designated for smoking in that area commonly called a lobby; and at conventions of private groups where the persons participating in the convention are individually identified by the sponsor or organizer of the convention, or determined by law.
(h) In sports arenas, smoking shall be permitted in areas designated or smoking that access all lobby areas and are within the arena. With respect to bowling alleys, smoking is permitted in fifty percent of the bowler settee area (the area occupied by bowlers while keeping score and actually bowling), and in a contiguous designated area of the concourse (the area directly behind the bowler settee area), so long as the smoking area does not constitute more than fifty percent of the floor space of the concourse area.
(i) In places of meeting or public assembly during such time as a meeting open to the public is being conducted for educational, religious, recreational or political purposes, but not including meetings conducted in private residences, unless a child or health care facility is operated therein or unless the meeting is conducted in a common area of a multiple dwelling which contains ten or more dwelling units, smoking may be permitted only in designated areas reasonably accessible to all attendees.
(j) Smoking is prohibited in health care facilities, including hospitals, clinics, physical therapy facilities and convalescent homes: Provided, That this section may not authorize the prohibition of smoking in areas designated for smoking in restaurants and dining areas and in offices which are not ordinarily used for care and treatment of patients. This section may not prohibit smoking by patients with medical conditions or psychiatric disorders or patients in special programs: Provided, however, That the patient's physician allows the patient to smoke. In addition, this section may not prohibit smoking in patient lounges designated for smoking: Provided further, That such lounges may not constitute more than fifty percent of the total lounge space available.
(k) Smoking is prohibited in all preprimary, primary and secondary schools which provide instruction for students at or below the twelfth-grade level: Provided, That this section may not prohibit smoking in areas designated for smoking in employee dining areas, lounges or administrative offices.
(l) In all schools other than those covered in subsection (k) of this section, including, but not limited to, community colleges, technical training establishments, specialty schools, colleges and universities, smoking may be permitted only in:
(1) Areas designated for smoking in employee lunchrooms, cafeterias and lounges;
(2) Areas designated for smoking in student dining areas or lounges which may constitute not more than fifty percent of the seating capacity or floor space, whichever is greater, of the student dining areas or lounges; and
(3) Private rooms or residences in school dormitories and buildings.
(m) Smoking is prohibited in all elevators.
(n) Smoking is prohibited on any service line in an enclosed area within a public place during the times in which the public is invited or permitted.
§16-9A-10. Regulation of smoking in place of employment.
(a) It shall be the responsibility of employers who employ more than fifty employees to provide, to the extent reasonably practicable, smoke-free work areas for nonsmoking employees who sit or otherwise occupy common work areas in places of employment: Provided, That smoke-free areas may not occupy more than fifty percent of the common work areas.
(b) Within ninety days after the effective date of this article, every employer employing more than fifty employees and having employees occupying common work areas shall adopt, implement, make known and maintain a written smoking policy which shall contain at minimum, the following requirements:
(1) That any employee may designate his or her private work area not in a common work area as a nonsmoking area;
(2) That smoking shall be permitted in private, enclosed offices, and in enclosed areas occupied exclusively by employees who do not object that the areas be designated for smoking, even though the enclosed areas may be visited in the normal course of business by other persons or employees;
(3) That smoking shall be permitted in designated areas in auditoriums, classrooms, hallways, rest rooms, conference rooms and meeting rooms;
(4) That smoking shall be permitted in designated areas in cafeterias, lunchrooms and employee lounges. Such areas shall occupy at least one half of the seating capacity or floor space of said areas;
(5) No person or employer may retaliate by adverse personnel action or disadvantage in any manner a person, an employee or an applicant for employment who smokes, does not smoke, or exercises or attempts to exercise, any rights granted under the written smoking policy pursuant to this subsection. Adverse personnel action includes, but is not limited to, dismissal, demotion, suspension, disciplinary action, negative performance evaluation, any action resulting in loss of staff, compensation or other benefit, failure to hire, failure to appoint, failure to promote, or any transfer or assignment or failure to transfer or assign against the wishes of the affected employee or potential employee.
(c) An employer may designate a separate enclosed room or rooms within a place of employment solely for use by smokers.
(d) An employer shall prominently post the smoking policy in the workplace, and shall, within three weeks of its adoption, disseminate the policy to all employees and to new employees when hired.
(e) An employer shall supply a written copy of the smoking policy upon request to any employee or prospective employee.
(f) Where a place of employment is also a public place where smoking is prohibited pursuant to section nine, the employer shall nevertheless adhere to the provisions of this section with respect to the private areas to which the general public does not have access.
(g) Nothing in this section may be construed to impair, diminish or otherwise affect any collectively bargained procedure or remedy available to an employee with respect to disputes arising under the employer's smoking policy or with respect to the establishment of a procedure for redress of any adverse personnel action taken against an employee in retaliation for that employee's attempt to exercise his or her rights under this section.
§16-9A-11. Areas where smoking is not regulated.
The following areas may not be subject to the smoking restrictions of this chapter:
(a) Bars;
(b) Private residences, except when a child care or health care facility is operated therein: Provided, That a common area of a multiple dwelling which contains ten or more units shall be subject to smoking restrictions when the multiple dwelling is a place of employment or a public place;
(c) Retail stores of ten thousand square feet or less;
(d) Tobacco businesses;
(e) Private automobiles;
(f) Private, enclosed offices;
(g) Enclosed areas in restaurants, catering halls, convention halls, hotel and motel conference rooms and other similar facilities during the time the enclosed areas or rooms are being used exclusively for private functions, such that the seating arrangements are under the control of the sponsor of the function and not the person who owns, operates or manages the facility;
(h) Restaurants with an indoor seating capacity of one hundred patrons or fewer;
(i) Businesses which employ fifty or fewer employees at any one location.
§16-9A-12. Posting of signs.
(a) Except as may otherwise be provided by existing rules, "Smoking" or "No Smoking" signs, or the international symbols indicating the same, and any other signs necessary to comply with the provisions of this chapter shall be posted at all appropriate locations within each enclosed area where smoking is either prohibited, permitted or otherwise regulated by this article, by the owner, operator, manager or other person having control of such area.
(b) In addition to the posting of signs as provided in subsection (a) of this section, every motion picture theater owner, manager or operator shall show upon the screen for at least five seconds prior to the showing of each feature motion picture, information indicating the areas where smoking is prohibited and permitted within the premises.
§16-9A-13. Enforcement and penalties.
Any person, corporation, partnership, association or other entity, who violates any provision of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars.
§16-9A-14. Preemption.
It is the Legislature's intent to occupy the entire field of regulation of all matters related to the use, distribution, sale, marketing and promotion of tobacco, exclusive of all local regulation of tobacco by any political subdivision or appointed board of health. As a result, no county, municipality, board of health or other political subdivision within this state may enact any law, ordinance, regulation or requirement of any sort regulating the use, sale, distribution, marketing or promotion of tobacco products which is more restrictive than the provisions of this article. All such requirements, regulations and prohibitions heretofore adopted by any county commission, municipality, county, multicounty, municipal and combined board of health, to the extent that they are more restrictive than the provisions of this article, are hereby declared to be null and void.
§16-9A-15. Repeal of conflicting laws.
All laws or parts of laws which conflict with this article are hereby repealed.
§16-9A-16. Severability.
The provisions of this article are severable. If any part of this article is declared invalid or unconstitutional, such declaration may not affect the part which remains.

NOTE: The purpose of this bill is to provide regulations for matters related to the use of tobacco products and places where smoking is permitted.

Sections eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen and sixteen are new; therefore, strike-throughs and underscoring have been omitted.