Senate Bill No. 493
(By Senators Wiedebusch and Bowman)
[Introduced February 20, 1995; referred to the Committee
on Government Organization.]
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.
As used in this article, the following terms have the
(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
(d) "Person" means any individual, partnership, association
(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
(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
(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
(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
(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
(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
(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
(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
§16-9A-11. Areas where smoking is not regulated.
The following areas may not be subject to the smoking
restrictions of this chapter:
(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
§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.
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
§16-9A-15. Repeal of conflicting laws.
All laws or parts of laws which conflict with this article
are hereby repealed.
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.