H. B. 2676

(By Delegates Williams, Stemple, Stalnaker, Everson, Facemyer and Seacrist)
[Introduced March 21, 1997; referred to the
Committee on Health and Human Resources then Finance.]

A BILL to amend article two-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section twelve, relating to county or municipal boards of health promulgating rules restricting or prohibiting the smoking or possession of tobacco in a public place; procedures required; public hearings; written report made public; review of proposed rule county commission or appropriate municipal governing board upon motion by board of health; additional public hearings; approval by county commission or appropriate municipal governing board; adoption by county or municipal board of health; definition; certain rules void.

Be it enacted by the Legislature of West Virginia:
That article two-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section twelve, to read as follows:
§16-2A-12. Rules relating to smoking in places of public accommodation.
(a) Notwithstanding the provisions of section sixteen, article two, a county board of health, a municipal board of health or a combined board of health established pursuant to the provisions of this or article two, may adopt or promulgate rules restricting or prohibiting the smoking of tobacco in a place of public accommodation or the possession in a place of public accommodation of a lighted or unlighted cigarette, cigar, pipe or other device used to smoke tobacco and that would impose civil or criminal penalties for violating the restriction or prohibition: Provided, That the board adopts and promulgates the rule in accordance with the procedures established under this section. These rules, unless adopted and promulgated in the manner provided for in this section, shall be void and without legal force or effect.
(b) When a board of health proposes to adopt a rule that is subject to this section, the board shall adopt a resolution of intent to adopt the rule. After adopting the resolution, the board shall hold at least three public hearings to obtain comments regarding the proposed rule. Not more than one hearing may be held in any seven-day period. A hearing may not be held unless a majority of the members of the board are present.
The board shall publish notice of each public hearing once a week for two consecutive weeks in a newspaper of general circulation within each political subdivision that would be affected by the implementation of the proposed rule. The first notice of the first hearing shall be published at least two weeks prior to the date the hearing is scheduled to be held. Each notice shall specify the date, time, location and purpose of the hearing and shall summarize the proposed rule in a manner sufficient to inform a person of average intelligence of the details of the proposed rule.
Following the last public hearing, the board shall prepare a written report setting forth its findings of fact and conclusions of law with regard to the proposed rule. Not later than thirty days after the date the report is completed, the board shall make the report available to the public. The board shall provide a copy of the report to any interested party that requests a copy.
Interested parties may file with the board written objections to any information in the report. Objections shall be filed not later than thirty days after the report is made available to the public, except that the board may grant an interested party an extension of time within which to file its objections. The board shall consider all objections received and may request the interested parties to submit additional evidence.
After the time for filing objections has expired, the board may approve a motion to submit the proposed rule for review by the county commission in the case of a county board of health, the appropriate governing board of the municipality in the case of a municipal board of health or each of the appropriate county commissions or governing boards in the case of a combined board of health. The motion may be approved only by majority vote of the board of health.
(c) After receiving a proposed rule, the county commission or governing board of the municipality shall hold at least three public hearings to obtain comments regarding the proposed rule. Not more than one hearing may be held in any seven-day period. A hearing may not be held unless a majority of the members of the county commission or governing board of the municipality are present.
The county commission or governing board of the municipality shall publish notice of each public hearing once a week for two consecutive weeks in a newspaper of general circulation within each county or municipality that would be affected by the implementation of the proposed rule. The first notice of the first hearing shall be published at least two weeks prior to the date the hearing is scheduled to be held. Each notice shall specify the date, time, location and purpose of the hearing and shall summarize the proposed rule in a manner sufficient to inform a person of average intelligence of the details of the proposed rule.
Not sooner than thirty days after the last public hearing, the county commission or governing board of the municipality may, by majority vote, approve, modify or reject the proposed rule. The county commission or governing board of the municipality shall submit its decision in writing to the board of health.
(d) If the county commission or governing board of the municipality approves or modifies the proposed rule, the board of health may, by majority vote, adopt the rule. The board may adopt the rule only in the form in which it is approved or modified by the county commission or governing board of the municipality. In the case of a combined board of health, the board may adopt the rule only if each of the applicable county commissions or governing boards has approved or modified the rule in identical form.
(e) As used in this section, the term "place of public accommodation" means an enterprise, facility or other place operated by a person or government entity where the accommodations, amusements, advantages or privileges offered by the enterprise, facility or place are available to the public, including any hotel or other type of public lodging, house, restaurant or other type of public eating house, theater, barbershop or similar enterprise, store or other place where merchandise is sold or public conveyance by land or water.
(f) A rule adopted by a county board of health, municipal board of health or combined board of health restricting or prohibiting the smoking of tobacco in a place of public accommodation or the possession in a place of public accommodation of any lighted or unlighted cigarette, cigar, pipe or other device used to smoke tobacco and that imposes civil or criminal penalties for violating the restriction or prohibition is void if the rule was adopted on or after the first day of January, one thousand nine hundred ninety-seven, but prior to the effective date of this section, unless the rule was adopted in a manner substantially similar to the procedure established under this section. A board of health may subsequently adopt a rule that is substantially similar to a rule voided by operation of this section if the board complies with the procedures established in this section.

NOTE: The purpose of this bill is to require county and municipal boards of health to follow certain procedures when promulgating rules restricting or prohibiting the use or possession of tobacco in public places. Before adopting such rules, the board of health must follow procedures which include: holding public hearings, making a written report available to the public, submitting rule to county commission or municipal governing body for review upon motion of board of health; additional public hearings; and approval by county commission or municipal governing body.

§12 is new; therefore, strike-throughs and underscoring have been omitted.