HB2208 H PS AM 2-10

                                                       HOUSE COMMITTEE ON POLITICAL SUBDIVISIONS

                                                                                                                COUNSEL: David Gilbert

            The Committee on Political Subdivisions moves to amend the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

            “That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §16-2-16, to read as follows:

ARTICLE 2. LOCAL BOARDS OF HEALTH.

§16-2-16. Procedures for local regulation of smoking.

            (a) Short title. – This section shall be known and may be cited as the "Elected Official Accountability Act."

            (b) For the purposes of this section, “smoking” means inhaling or exhaling tobacco smoke or smoke from any other plant. “Smoking” also means carrying any lighted cigar, cigarette, pipe or other device for smoking tobacco or any other plant. “Smoking” does not include the burning of incense in a religious ceremony.

            (c) Notwithstanding any provision of this code, a local board of health shall not promulgate a rule that restricts smoking in an area or areas of an establishment that meet the following requirements:

            (i) An individual may not enter the area or areas to be exempted under subsection (c) unless he or she is 21 years of age or older,

            (ii) At least 10% of the indoor space of the area or areas to be exempted under subsection (c) is a designated nonsmoking area, and

            (iii) A permanent ventilation system operates in the area or areas to be exempted under subsection (c) that ensures a minimum air exchange of three times per hour throughout the indoor premises.

            (d) A person seeking to be exempted from a smoking restriction shall submit a request for exemption to the local board of health and copies of any drawings, schematics, plans or other documents tending to show that the person’s establishment, when built or renovated, will satisfy the requirements of subsection (c). The local board of health shall review the request for exemption and the person’s drawings, schematics, plans or other documents in order to determine whether the requirements under subsection (c) will be met. If the local board of health concludes that the establishment, when built or renovated, is reasonably likely to meet the requirements of subsection (c), the local board of health shall provide to the county commission of the county in which the establishment is or will be located a certificate of finding verifying that the requirements of subsection (c) will be met and a request for exemption. After receiving the request for exemption, the county commission shall review and may approve the request for exemption in a regular or special session. In every case, the local board of health or the county commission shall render a decision within thirty days after it receives a request for exemption.

            (e) The provisions of this article preempt and supersede any rule, ordinance, or law of any county or municipality regulating smoking in a public enclosed area.

            (f) Once an exemption has been granted by a county commission pursuant to this section, the exemption may not be revoked unless there is substantial evidence of the establishment’s noncompliance with subsection (c) of this section.