Bill Text: MS HB54 | 2010 | Regular Session | Introduced
Bill Title: Smoke Free Air Act of 2010; enact.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-02-02 - Died In Committee [HB54 Detail]
Download: Mississippi-2010-HB54-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Public Health and Human Services
By: Representative Mayo
House Bill 54
AN ACT TO CREATE THE MISSISSIPPI SMOKE-FREE AIR ACT OF 2010; TO EXPRESS CERTAIN LEGISLATIVE FINDINGS REGARDING THE EFFECTS OF SECONDHAND SMOKE AND OTHER RISKS OF SMOKING; TO DEFINE CERTAIN TERMS; TO PROHIBIT SMOKING IN ALL ENCLOSED PUBLIC PLACES IN THE STATE, IN ALL ENCLOSED FACILITIES WITHIN PLACES OF EMPLOYMENT, IN CERTAIN ENCLOSED RESIDENTIAL FACILITIES, AND IN CERTAIN OUTDOOR PLACES; TO PROVIDE FOR CERTAIN EXEMPTIONS FROM THE PROHIBITIONS ON SMOKING IN THIS ACT; TO PROVIDE THAT "NO SMOKING" SIGNS SHALL BE POSTED IN EVERY PLACE WHERE SMOKING IS PROHIBITED BY THIS ACT; TO PROVIDE THAT NO ACTION MAY BE TAKEN AGAINST EMPLOYEES WHO EXERCISE ANY RIGHTS AFFORDED BY THIS ACT; TO DIRECT THE STATE DEPARTMENT OF HEALTH TO ADOPT RULES AND REGULATIONS AS NECESSARY TO IMPLEMENT THIS ACT; TO PROVIDE THAT THIS ACT SHALL BE ENFORCED BY LOCAL HEALTH DEPARTMENTS, CITY MANAGERS OR ADMINISTRATORS AND COUNTY ADMINISTRATORS; TO AUTHORIZE PRIVATE CITIZENS TO BRING LEGAL ACTIONS TO ENFORCE THIS ACT; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; TO ALLOW POLITICAL SUBDIVISIONS TO ADOPT LOCAL ORDINANCES RELATING TO SMOKING THAT ARE MORE RESTRICTIVE THAN THIS ACT; TO REPEAL SECTIONS 29-5-160 THROUGH 29-5-163, MISSISSIPPI CODE OF 1972, WHICH ARE THE MISSISSIPPI CLEAN INDOOR AIR ACT, AND SECTIONS 97-32-25 THROUGH 97-32-29, MISSISSIPPI CODE OF 1972, WHICH ARE THE MISSISSIPPI ADULT TOBACCO USE ON EDUCATIONAL PROPERTY ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known as the Mississippi Smoke-free Air Act of 2010.
SECTION 2. (1) The Legislature finds that:
(a) The 2006 United States Surgeon General's Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, has concluded that:
(i) Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke;
(ii) Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory problems, ear infections, and asthma attacks, and smoking by parents causes respiratory symptoms and slows lung growth in their children;
(iii) Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer;
(iv) There is no risk-free level of exposure to secondhand smoke;
(v) Establishing smoke-free workplaces is the only effective way to ensure that secondhand smoke exposure does not occur in the workplace, because ventilation and other air cleaning technologies cannot completely control for exposure of nonsmokers to secondhand smoke; and
(vi) Evidence from peer-reviewed studies shows that smoke-free policies and laws do not have an adverse economic impact on the hospitality industry.
(b) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of approximately fifty-three thousand (53,000) Americans annually.
(c) The Public Health Service's National Toxicology Program (NTP) has listed secondhand smoke as a known carcinogen.
(d) Based on a finding by the California Environmental Protection Agency in 2005, the California Air Resources Board has determined that secondhand smoke is a toxic air contaminant, finding that exposure to secondhand smoke has serious health effects, including low birth-weight babies; sudden infant death syndrome (SIDS); increased respiratory infections in children; asthma in children and adults; lung cancer, sinus cancer, and breast cancer in younger, premenopausal women; heart disease; and death.
(e) Scientific evidence has firmly established that there is no safe level of exposure to secondhand tobacco smoke, a pollutant that causes serious illness in adults and children. There is also indisputable evidence that implementing one hundred percent (100%) smoke-free environments is the only effective way to protect the population from the harmful effects of exposure to secondhand smoke.
(f) A study of hospital admissions for acute myocardial infarction in Helena, Montana, before, during, and after a local law eliminating smoking in workplaces and public places was in effect, has determined that laws to enforce smoke-free workplaces and public places may be associated with a reduction in morbidity from heart disease. Similar studies have been conducted in Bowling Green, Ohio; Monroe County, Indiana; Pueblo, Colorado; New York State; France; Greece; Italy; and Scotland. All of these studies have reached the conclusion that communities see an immediate reduction in heart attack admissions after the implementation of comprehensive smoke-free laws.
(g) Secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease.
(h) The Americans With Disabilities Act, which requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability.
(i) The United States Centers for Disease Control and Prevention has determined that the risk of acute myocardial infarction and coronary heart disease associated with exposure to tobacco smoke is nonlinear at low doses, increasing rapidly with relatively small doses such as those received from secondhand smoke or actively smoking one (1) or two (2) cigarettes a day, and has warned that all patients at increased risk of coronary heart disease or with known coronary artery disease should avoid all indoor environments that permit smoking.
(j) Given the fact that there is no safe level of exposure to secondhand smoke, the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) bases its ventilation standards on totally smoke-free environments. ASHRAE has determined that there is currently no air filtration or other ventilation technology that can completely eliminate all the carcinogenic components in secondhand smoke and the health risks caused by secondhand smoke exposure, and recommends that indoor environments be smoke free in their entirety.
(k) A significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke filled businesses suffer a twenty-five to fifty percent (25-50%) higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable decrease in lung function.
(l) During periods of active smoking, peak and average outdoor tobacco smoke (OTS) levels measured in outdoor cafes and restaurant and bar patios near smokers rival indoor tobacco smoke concentrations.
(m) The Society of Actuaries has determined that secondhand smoke costs the United States economy roughly Ten Billion Dollars ($10,000,000,000.00) a year: Five Billion Dollars ($5,000,000,000.00) in estimated medical costs associated with secondhand smoke exposure and Four Billion Six Hundred Million Dollars ($4,600,000,000.00) in lost productivity.
(n) Numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smoke free. Creation of
smoke-free workplaces is sound economic policy and provides the maximum level of employee health and safety.
(o) Hundreds of communities in the United States, plus numerous states, including California, Delaware, Florida, Massachusetts, Montana, New Jersey, New York, and Washington, have enacted laws requiring workplaces, restaurants, bars, and other public places to be smoke free, as have numerous countries, including Ireland, New Zealand, Norway, Scotland, Sweden, Uganda, and Uruguay.
(p) There is no legal or constitutional "right to smoke." Business owners have no legal or constitutional right to expose their employees and customers to the toxic chemicals in secondhand smoke. On the contrary, employers have a common law duty to provide their workers with a workplace that is not unreasonably dangerous.
(q) Smoking is a potential cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures causes economic damage to businesses.
(r) The smoking of tobacco is a form of air pollution, a positive danger to health, and a material public nuisance.
(2) Accordingly, the Legislature finds and declares that the purposes of this act are:
(a) To protect the public health and welfare by prohibiting smoking in public places and places of employment; and (b) To guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
SECTION 3. The following words and phrases, whenever used in this act, shall be construed as defined in this section:
(a) "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including, but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.
(b) "Business" means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including, but not limited to, retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered; and private clubs.
(c) "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his or her services for a nonprofit entity.
(d) "Employer" means a person, business, partnership, association, corporation, including a municipal corporation, trust, or nonprofit entity that employs the services of one or more individual persons.
(e) "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by permanent or temporary walls or windows (exclusive of doorways), which extend from the floor to the ceiling.
(f) "Health care facility" means an office or institution providing care or treatment of diseases, whether physical, mental or emotional, or other medical, physiological, or psychological conditions, including, but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long-term care facilities, homes for the aging or chronically ill, laboratories, and offices of physicians, surgeons, dentists, chiropractors, physical therapists, other health care professionals, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.
(g) "Place of employment" means an area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility.
(h) "Private club" means an organization, whether incorporated or not, that is the owner, lessee or occupant of a building or portion thereof used exclusively for club purposes at all times, that is operated solely for a recreational, fraternal, social, patriotic, political, benevolent or athletic purpose, but not for pecuniary gain, and that only sells alcoholic beverages incidental to its operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 USCS Section 501.
(i) "Public place" means an enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, banks, bars, educational facilities, gaming facilities, health care facilities, hotels and motels, laundromats, public transportation vehicles and facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters and waiting rooms. A private club is a "public place" when it is being used for a function to which the general public is invited. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.
(j) "Restaurant" means an eating establishment, including, but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, that gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" includes a bar area within the restaurant.
(k) "Service line" means an indoor or outdoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including, but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines.
(m) "Shopping mall" means an enclosed public walkway or hall area that serves to connect retail or professional establishments.
(n) "Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe in any manner or in any form.
(o) "Sports arena" means sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events.
SECTION 4. All enclosed facilities, including buildings and vehicles owned, leased, or operated by the State of Mississippi or any agency, department, institution or political subdivision of the state shall be subject to the provisions of this act.
SECTION 5. Smoking shall be prohibited in all enclosed public places within the State of Mississippi, including, but not limited to, the following places:
(a) Aquariums, galleries, libraries and museums.
(b) Areas available to and customarily used by the general public in businesses and nonprofit entities patronized by the public, including, but not limited to, banks, laundromats, professional offices, and retail service establishments.
(c) Bars.
(d) Bingo facilities.
(e) Child care and adult day care facilities.
(f) Convention facilities.
(g) Educational facilities, both public and private.
(h) Elevators.
(i) Gaming facilities.
(j) Health care facilities.
(k) Hotels and motels.
(l) Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.
(m) Polling places.
(n) Private clubs when being used for a function to which the general public is invited.
(o) Public transportation vehicles, including buses and taxicabs, under the authority of the state or any agency, department, institution or political subdivision of the state, and ticket, boarding, and waiting areas of public transportation facilities, including bus, train and airport facilities.
(p) Restaurants.
(q) Restrooms, lobbies, reception areas, hallways, and other common-use areas.
(r) Retail stores.
(s) Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of an agency, board, commission, committee or council of the state or any of its subdivisions.
(t) Service lines.
(u) Shopping malls.
(v) Sports arenas, including enclosed places in outdoor arenas.
(w) Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances.
SECTION 6. (1) Smoking shall be prohibited in all enclosed facilities within places of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
(2) This prohibition on smoking shall be communicated to all existing employees not later than August 1, 2010, and to all prospective employees upon their application for employment.
SECTION 7. Smoking shall be prohibited in the following enclosed residential facilities:
(a) All private and semi-private rooms in nursing homes.
(b) At least eighty percent (80%) of hotel and motel rooms that are rented to guests.
SECTION 8. Smoking shall be prohibited in the following outdoor places:
(a) Within twenty (20) feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to insure that tobacco smoke does not enter those areas.
(b) In outdoor seating or serving areas of restaurants and within twenty (20) feet thereof.
(c) In all outdoor arenas, stadiums, and amphitheaters, except in designated smoking areas, which may be established only in perimeter areas at least twenty (20) feet from any seating areas or concession stands. Smoking shall also be prohibited within twenty (20) feet of bleachers and grandstands for use by spectators at sporting and other public events.
(d) In all public transportation stations, platforms, and shelters under the authority of the state or any agency, department, institution or political subdivision of the state.
(e) In all outdoor service lines.
(f) In outdoor common areas of nursing homes, except in designated smoking areas, which must be located at least twenty (20) feet outside of entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited.
SECTION 9. Notwithstanding any other provision of this act to the contrary, the following areas shall be exempt from the provisions of Sections 5 and 6 of this act:
(a) Private residences, except when used as a child care, adult day care, or health care facility, and except as provided in Section 7 of this act.
(b) Not more than twenty percent (20%) of hotel and motel rooms rented to guests and designated as smoking rooms. All smoking rooms on the same floor must be contiguous and smoke from these rooms must not infiltrate into areas where smoking is prohibited under the provisions of this act. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms.
(c) Private clubs that have no employees, except when being used for a function to which the general public is invited, provided that smoke from those clubs does not infiltrate into areas where smoking is prohibited under the provisions of this act. This exemption shall not apply to any organization that is established for the purpose of avoiding compliance with this act.
(d) Outdoor areas of places of employment except those covered by the provisions of Section 8 of this act.
SECTION 10. Notwithstanding any other provision of this act, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 11(1) of this act is posted.
SECTION 11. (1) "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this act, by the owner, operator, manager, or other person in control of that place.
(2) Every public place and place of employment where smoking is prohibited by this act shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. Every vehicle that constitutes a place of employment under this act shall have at least one (1) conspicuous sign, visible from the exterior of the vehicle, clearly stating that smoking is prohibited.
(3) All ashtrays shall be removed from any area where smoking is prohibited by this act by the owner, operator, manager, or other person having control of the area.
SECTION 12. (1) No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant or customer exercises any rights afforded by this act or reports or attempts to prosecute a violation of this act. Notwithstanding Section 15 of this act, a violation of this subsection shall be a misdemeanor, punishable by a fine not to exceed One Thousand Dollars ($1,000.00) for each violation.
(2) An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party.
SECTION 13. The State Department of Health shall adopt rules and regulations as are necessary and reasonable to implement the provisions of this act. Notice of the provisions of this act shall be given to all applicants for a business license in the state.
SECTION 14. (1) This act shall be enforced by local health departments, city managers or administrators, county administrators, and their authorized designees.
(2) Any person who desires to register a complaint under this act may initiate enforcement with the local health department, city manager or administrator, or county administrator.
(3) Local health departments, fire departments, and their designees, while an establishment is undergoing otherwise mandated inspections, shall inspect for compliance with this act.
(4) An owner, manager, operator or employee of an establishment regulated by this act shall inform persons violating this act of the appropriate provisions thereof.
(5) Notwithstanding any other provision of this act, an employee or private citizen may bring legal action to enforce this act.
(6) In addition to the remedies provided by the provisions of this section, local health departments, city managers or administrators, county administrators, and any persons aggrieved by the failure of the owner, operator, manager or other person in control of a public place or a place of employment to comply with the provisions of this act may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.
SECTION 15. (1) A person who smokes in an area where smoking is prohibited by the provisions of this act shall be guilty of a misdemeanor, punishable by a fine not exceeding Fifty Dollars ($50.00).
(2) Except as otherwise provided in Section 12(1) of this act, a person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this act shall be guilty of a misdemeanor, punishable by:
(a) A fine not exceeding One Hundred Dollars ($100.00) for a first violation.
(b) A fine not exceeding Two Hundred Dollars ($200.00) for a second violation within one (1) year.
(c) A fine not exceeding Five Hundred Dollars ($500.00) for each additional violation within one (1) year.
(3) In addition to the fines established by this section, violation of this act by a person who owns, manages, operates, or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred.
(4) Violation of this act is declared to be a public nuisance, which may be abated by restraining order, preliminary and permanent injunction, or other means provided for by law.
(5) Each day on which a violation of this act occurs shall be considered a separate and distinct violation.
SECTION 16. Nothing in this act shall be construed to prevent a political subdivision of the state from adopting local ordinances or regulations relating to smoking in workplaces and public places that are more restrictive than this act, nor does this act repeal any existing local ordinances or regulations that provide restrictions on smoking that are equivalent to or greater than those provided by this act.
SECTION 17. The State Department of Health shall engage in a continuing program to explain and clarify the purposes and requirements of this act to persons affected by it, and to guide owners, operators, and managers in their compliance with it. The program may include publication of a brochure for affected businesses and persons explaining the provisions of this act.
SECTION 18. This act shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable state or local laws.
SECTION 19. This act shall be liberally construed so as to further its purposes.
SECTION 20. This act shall not be construed as amending or repealing Section 97-35-1(4).
SECTION 21. Sections 29-5-160, 29-5-161 and 29-5-163, Mississippi Code of 1972, which are the Mississippi Clean Indoor Air Act, and Sections 97-32-25, 97-32-27 and 97-32-29, Mississippi Code of 1972, which are the Mississippi Adult Tobacco Use on Educational Property Act, are repealed.
SECTION 22. This act shall take effect and be in force from and after July 1, 2010.
