118527-1:n:02/22/2010:DA/th LRS2010-957

To establish the Alabama Smokefree Air Act of 2010 to prohibit smoking in enclosed public places, places of employment, private clubs, enclosed residential facilities, and outdoor areas; to provide exceptions; to require the posting of signs; to provide for enforcement; to provide for a fine for a person who smokes in violation of this act; to provide for a fine for employers who retaliate against an employee; to provide for graduated fines for violations by owners or managers of public places; and to repeal Sections 22-15A-1 to 22-15A-10, inclusive, of the Code of Alabama 1975.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known as the Alabama Smokefree Air Act of 2010.

Section 2. The Legislature hereby finds and declares all of the following:

(1) The 2006 U.S. Surgeon General's Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, has concluded all of the following:

a. Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke.

b. 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 that smoking by parents causes respiratory symptoms and slows lung growth in their children.

c. Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.

d. There is no risk-free level of exposure to secondhand smoke.

e. 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.

f. Evidence from peer-reviewed studies shows that smoke-free policies and laws do not have an adverse economic impact on the hospitality.

(2) 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 53,000 Americans annually.

(3) The Public Health Service's National Toxicology Program (NTP) has listed secondhand smoke as a known carcinogen.

(4) 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.

(5) 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 100 percent smoke-free environments is the only effective way to protect the population from the harmful effects of exposure to secondhand smoke.

(6) A significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer a 25-50 percent 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.

(7) 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. 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.

(8) The U.S. 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 disease, increasing rapidly with relatively small doses such as those received from secondhand smoke or actively smoking one or two 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.

(9) 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.

(10) 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.

(11) Residual tobacco contamination, or "third-hand smoke," from cigarettes, cigars, and other tobacco products is left behind after smoking occurs and builds up on surfaces and furnishings. This residue can linger in spaces long after smoking has ceased and continue to expose people to tobacco toxins. Sticky, highly toxic particulate matter, including nicotine, can cling to walls and ceilings. Gases can be absorbed into carpets, draperies, and other upholsteries, and then be re-emitted (off-gassed) back into the air and recombine to form harmful compounds. Tobacco residue is noticeably present in dust throughout places where smoking has occurred.

(12) Unregulated high tech smoking devices, commonly referred to as electronic cigarettes, or "e-cigarettes," closely resemble and purposefully mimic the act of smoking by having users inhale vaporized liquid nicotine created by heat through an electronic ignition system. After testing a number of e-cigarettes from two leading manufacturers, the Food and Drug Administration (FDA) determined that various samples tested contained not only nicotine but also detectable levels of known carcinogens and toxic chemicals, including tobacco-specific nitrosamines and diethylene glycol, a toxic chemical used in antifreeze. The FDA's testing also suggested that "quality control processes used to manufacture these products are inconsistent or nonexistent." E-cigarettes produce a vapor of undetermined and potentially harmful substances, which may appear similar to the smoke emitted by traditional tobacco products. Their use in workplaces and public places where smoking of traditional tobacco products is prohibited creates concern and confusion and leads to difficulties in enforcing the smoking prohibitions.

(13) The Society of Actuaries had determined that secondhand smoke costs the United States economy roughly $10 billion a year, $5 billion in estimated medical costs associated with secondhand smoke exposure and $4.6 billion in lost productivity.

(14) 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.

(15) Hundreds of communities in the United States, plus numerous states, including Arizona, Delaware, Illinois, Iowa, Massachusetts, New Jersey, New York, Ohio, Utah, and Washington, have enacted laws requiring all workplace, restaurants, bars, and other public places to be smoke free, as have numerous countries, including Bhutan, France, Iceland, Ireland, New Zealand, Norway, Singapore, Uruguay, and the United Kingdom constituent countries of England, Northern Ireland, Scotland, and Wales.

(16) 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.

(17) Smoking is a potential cause of fires; cigarette and cigar burns and ash stains on merchandise and fixtures cause economic damage to businesses.

(18) The smoking of tobacco is a form of air pollution, a positive danger to health, and a material public nuisance.

Section 3. The following terms shall have the following meanings unless otherwise specified:

(1) BAR. 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.

(2) BUSINESS. A sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including 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.

(3) E-CIGARETTE. Any electronic device composed of a mouthpiece, heating element, battery, and electronic circuits that provides a vapor of liquid nicotine or other substances mixed with propylene glycol, or both, to the user as he or she simulates smoking. The term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, or e-pipes, or under any other product name.

(4) EMPLOYEE. 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.

(5) EMPLOYER. A person, business, partnership, association, corporation, including a municipal corporation, trust, or nonprofit entity that employs the services of one or more individual persons.

(6) ENCLOSED AREA. 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.

(7) HEALTH CARE FACILITY. 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 surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.

(8) PLACE OF EMPLOYMENT. 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.

(9) PLAYGROUND. Any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds or on city or county grounds.

(10) PRIVATE CLUB. An organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain, and which 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 or a constitution, or both, to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club pursuant to 26 U.S.C. Section 501.

(11) PUBLIC PLACE. 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 residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.

(12) RESTAURANT. An eating establishment, including, but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which 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" shall include a bar area within the restaurant.

(13) SERVICE LINE. 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.

(14) SHOPPING MALL. An enclosed public walkway or hall area that serves to connect retail or professional establishments.

(15) SMOKING. Inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, in any manner or in any form. "Smoking" also includes the use of an e-cigarette which creates a vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking pursuant to this act.

(16) SPORTS ARENA. 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 any governmental entity of the state, county, or municipality shall be subject to this act.

Section 5. Smoking shall be prohibited in all enclosed public places within the state, including, but not limited to, the following places:

(1) Aquariums, galleries, libraries, and museums.

(2) 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.

(3) Bars.

(4) Bingo facilities.

(5) Child care and adult day care facilities.

(6) Convention facilities.

(7) Educational facilities, both public and private.

(8) Elevators.

(9) Gaming facilities.

(10) Health care facilities.

(11) Hotels and motels.

(12) Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.

(13) Polling places.

(14) Public transportation vehicles, including buses and taxicabs, under the authority of a county or municipality and ticket, boarding, and waiting areas of public transportation facilities, including bus, train, and airport facilities.

(15) Restaurants.

(16) Restrooms, lobbies, reception areas, hallways, and other common-use areas.

(17) Retail stores.

(18) 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, to the extent the place is subject to the jurisdiction of the state.

(19) Service lines.

(20) Shopping malls.

(21) Sports arenas, including enclosed places in outdoor arenas.

(22) Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances.

Section 6. (a) Smoking shall be prohibited in all enclosed facilities within places of employment without exception. This shall include 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.

(b) The prohibition on smoking shall be communicated to all existing employees upon the effective date of this act and to all prospective employees upon their application for employment.

Section 7. Smoking shall be prohibited in all private clubs.

Section 8. Smoking shall be prohibited in all of the following enclosed residential facilities:

(1) All private and semiprivate rooms in nursing homes.

(2) At least 80 percent of hotel and motel rooms that are rented to guests.

Section 9. Smoking shall be prohibited in all of the following outdoor places:

(1) Within a reasonable distance of 15 to 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.

(2) In, and within 15 to 20 feet of, outdoor seating or serving areas of restaurants.

(3) In all outdoor arenas, stadiums, and amphitheaters. Smoking shall also be prohibited in, and within 15 to 20 feet of, bleachers and grandstands for use by spectators at sporting and other public events.

(4) In, and within 15 to 20 feet of, all outdoor public transportation stations, platforms, and shelters under the authority of any county or municipal governmental entity.

(5) In all outdoor service lines.

(6) In outdoor common areas of apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities, except in designated smoking areas, not to exceed 25 percent of the total outdoor common area, which must be located at least 15 to 20 feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited.

(7) In, and within 15 to 20 feet of, outdoor playgrounds.

Section 10. Notwithstanding any other provision of this act to the contrary, the following areas shall be exempt from the provisions of Sections 5 and 6:

(1) Private residences, except when used as a child care, adult day care, or health care facility, and except as provided in Section 7.

(2) Not more than 20 percent of hotel and motel rooms rented to guests and designated as smoking rooms. All smoking rooms on the same floor shall be contiguous and smoke from these rooms shall not infiltrate into areas where smoking is prohibited pursuant to this act. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms.

(3) Outdoor areas of places of employment except those covered by the provisions of Section 8.

Section 11. 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 subsection (a) of Section 12 is posted.

Section 12. (a) 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.

(b) 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 conspicuous sign, visible from the exterior of the vehicle, clearly stating that smoking is prohibited.

(c) 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 13. (a) 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.

(b) 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.

(c) Notwithstanding Section 15, a violation of subsection (a) or (b) shall be punishable by a fine not to exceed one thousand dollars ($1,000) for each violation.

Section 14. (a) This act shall be enforced by the State Board of Health or an authorized designee.

(b) Notice of the provisions of this act shall be given to all applicants for a business license in any county or municipality.

(c) Any citizen who desires to register a complaint under this act may initiate enforcement with the State Board of Health.

(d) The State Board of Health or fire department, or their designees, while an establishment is undergoing otherwise mandated inspections, shall inspect for compliance with this act.

(e) An owner, manager, operator, or employee of an establishment regulated by this act shall inform persons violating this act of the appropriate provisions thereof.

(f) Notwithstanding any other provision of this act, an employee or private citizen may bring legal action to enforce this act.

(g) In addition to the remedies provided by this section, the State Board of Health or any person 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. (a) A person who smokes in an area where smoking is prohibited pursuant to this act shall be guilty of a violation punishable by a fine not exceeding fifty dollars ($50).

(b) Except as otherwise provided in subsection (c) of Section 13, a person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with this act shall be punishable by the following:

(1) A fine not exceeding one hundred dollars ($100) for a first violation within one year.

(2) A fine not exceeding two hundred dollars ($200) for a second violation within one year.

(3) A fine not exceeding five hundred dollars ($500) for a third or additional violation within one year.

(c) In addition to the fines established by this section, a 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.

(d) A violation of this act is declared to be a public nuisance, which may be abated by the State Board of Health by restraining order, preliminary and permanent injunction, or other means provided for by law, and the State Board of Health may take action to recover the costs of the nuisance abatement.

(e) Each day on which a violation of this act occurs shall be considered a separate and distinct violation.

Section 16. The State Board of Health shall engage in a continuing program to explain and clarify the purposes and requirements of this act to citizens 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 individuals explaining the provisions of this ordinance.

Section 17. The State Board of Health shall annually request other governmental and educational agencies having facilities within the state to establish local operating procedures in cooperation and compliance with this act. This includes urging all federal, state, county, city, and school district agencies to update their existing smoking control regulations to be consistent with the current health findings regarding secondhand smoke.

Section 18. This act shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

Section 19. Sections 22-15A-1 to 22-15A-10, inclusive, of the Code of Alabama 1975, relating to the Alabama Clean Indoor Act are specifically repealed.

Section 20. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Health

Environment

Pollution

Smoking

Tobacco

Cigarettes

Board of Health, State

Popular Names

Nuisances

Code Repealed