HB1577 — Version 100

2000 SESSION

00-2076

01/09

HOUSE BILL 1577-FN

COMMITTEE: Commerce

ANALYSIS

This bill revises the indoor smoking act. Under this bill, smoking is prohibited in restaurants. The bill also authorizes the commissioner of health and human services to levy administrative fines on persons in charge of places of public access and publicly owned buildings and offices who repeatedly violate the indoor smoking act law.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

00-2076

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Findings and Purpose.

I. The Environmental Protection Agency (EPA) report #600/6-90/006F issued January 7, 1993 classified Environmental Tobacco Smoke (ETS) as a "group A" carcinogen. ETS (sometimes known as side smoke, secondhand smoke or passive smoke) is therefore classified with the most toxic substances known to cause cancer in humans. "Group A" carcinogens include dioxin, benzene, radon and asbestos.

II. Numerous scientific studies have shown an increased risk of lung cancer among non-smokers from exposure to environmental tobacco smoke in household settings. Exposure of children to environmental tobacco smoke from parental smoking is a cause of increased respiratory infections, increased risk of asthma, and decreased lung function. Adults and children with asthma and chronic respiratory conditions may experience worsening of their condition from exposure to environmental tobacco smoke in both public and private settings.

III. Seventy-six percent of adult persons in New Hampshire do not smoke.

IV. The purpose of this act is to protect the public health by reducing exposure to environmental tobacco smoke.

2 Indoor Smoking Act Revised. RSA 155:65 through 155:77 are repealed and reenacted to read as follows:

155:65 Definitions. In this subdivision:

I. "Cocktail lounge" means only that portion or specified area of a restaurant, hotel, motel, 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.

II. "Commissioner" means the commissioner of the department of health and human services, or designee.

III. "Department" means the department of health and human services.

IV. "Enclosed place" means a structurally enclosed location, or portion of such location, enclosed by a floor, ceiling, and 3 or 4 solid walls, partitions, or windows, exclusive of doors or passageways.

V. "Person in charge" means:

(a) For enclosed places that are not publicly owned buildings or offices, the person who has responsibility for, directly or by appointment, policy making and overseeing adherence to laws, rules, and regulations of an enclosed place of public access or a workplace. This definition shall not mean the owner of the property or place of public access or workplace unless he or she is routinely present and controls the day-to-day activities, or sets the policy, carried out within the enclosed place.

(b) For publicly owned buildings and offices, the person responsible for the operation of the building or office and the person responsible for the agency or organization occupying the building or office, or that person designated to act in the absence of the person in charge.

VI. "Public access" means any enclosed place of business, commerce, banking, financial service, or other service-related activity, whether publicly or privately owned and whether operated for profit or not, to which the general public has access or which the general public uses, including, but not limited to, buildings, offices, means of transportation, common carrier waiting rooms, arcades, restaurants, retail stores, grocery stores, libraries, theaters, concert halls, auditoriums, arenas, barber shops, hair salons, laundromats, shopping malls, museums, art galleries, sports and fitness facilities, planetariums, historical sites, and common areas of resorts, hotels and motels, including the lobbies, hallways, elevators, restaurants, restrooms and cafeterias.

VII. "Publicly owned buildings and offices" means enclosed places or portions of such places owned, leased, or rented by state, county, or municipal governments, or by agencies supported by appropriation of, or by contracts or grants from, funds derived from the collection of federal, state, county, or municipal taxes. This definition includes, but is not limited to, legislative offices, legislative meeting rooms and other areas used by legislative bodies; courtrooms, jury rooms, and other court facilities; recreation facilities; police stations; fire stations; county, city, and town offices; penal and detention institutions; armories; military training facilities; public housing; subsidized housing; common waiting areas, lobbies or common-use rooms; field offices of any government unit; and postsecondary educational institutions receiving funds appropriated by the state legislature. This definition also includes enclosed places periodically used by state, county, or municipal governments or their agencies, including, but not limited to, polling places and rooms in which a public meeting, hearing, or other proceeding open to the public is in progress. This definition shall also include, in accordance with federal laws and regulations, enclosed places and offices owned, leased, or rented by the federal government or agencies of the federal government.

VIII. "Restaurant" means any room or enclosed place used and kept open on a regular basis and in a bona fide manner for the serving of meals to guests for compensation.

IX. "Tobacco product" means any product containing tobacco including, but not limited to, cigarettes, smoking tobacco, cigars, chewing tobacco, snuff, pipe tobacco, smokeless tobacco, and smokeless cigarettes.

X. "Workplace" means an enclosed place at which 4 or more individuals perform any type of a service for consideration of payment under any type or term of employment relationship with, but not limited to, a sole proprietorship, corporation, partnership, company, individual, governing body, government agency, private voluntary agency, and any public nonprofit agency. This definition also includes any enclosed place where 4 or more individuals perform services in a volunteer capacity for which individuals are ordinarily paid.

155:66 Restrictions on Smoking in Public Places. Except as provided in RSA 155:67 and notwithstanding any law to the contrary, the possession of lighted tobacco products in any form is prohibited in the common areas of all enclosed indoor places of public access and publicly owned buildings and offices and in workplaces.

155:67 Exceptions. The restrictions in this chapter on possession of lighted tobacco products shall not apply to:

I. Public conveyances rented for private purposes.

II. Buildings owned and operated by social, fraternal, or religious organizations when used by the membership of the organization, their guests or families, or when they are rented or leased for private functions from which the public is excluded and arrangements are under the control of the sponsor of the function and not the organization.

III. Guest rooms of hotels, motels, and resorts.

IV. Halls, ballrooms, dining rooms, and conference rooms of hotels, motels, restaurants, resorts, and publicly accessible buildings or portions thereof, excluding those that are publicly owned, when rented or leased for private functions from which the public is excluded and arrangements are under the control of the sponsor of the function and not of the proprietor or person in charge of the facility.

V. Resident rooms in dormitories operated by postsecondary educational institutions, but such dormitories shall follow any appropriate procedures established by rules under RSA 155:69.

VI. Resident rooms in public housing facilities, but such facilities shall follow any appropriate procedures established by rule under RSA 155:69.

VII. Resident rooms in facilities such as nursing homes, sheltered care facilities, and residential treatment and rehabilitation facilities, and prisons and detention facilities, but such facilities shall follow any appropriate procedures established by rule under RSA 155:69.

VIII. Cocktail lounges as defined in RSA 155:65, I.

IX. Health care facilities, except for hospitals and other acute care facilities, provided that the health care facilities shall follow any appropriate procedures established by rule under RSA 155:69.

155:68 Enforcement. The person in charge, or the agent or employee of the person in charge, who observes a person in possession of the lighted tobacco product in apparent violation of this subdivision shall ask the person to extinguish all lighted tobacco products. If the person persists in the possession of lighted tobacco product, the person in charge, agent or employee of the person in charge shall ask the person to leave the premises.

155:69 Rulemaking. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:

I. Procedures for resident in dormitories under RSA 155:67, V.

II. Procedures for resident rooms in public housing facilities under RSA 155:67, VI.

III. Resident rooms in health care facilities under RSA 155:67, VII and IX.

IV. Notice and hearing procedures under RSA 155:72, II.

V. Any other matter necessary to the administration of this subdivision.

155:70 Noncompliance. If an employee or user of a building or facility determines or believes that the person in charge or others are not complying with this subdivision or rules adopted pursuant to this subdivision, a complaint shall be registered with the person in charge. If the complaint is not resolved within one calendar month, the complainant may proceed under the complaint procedures established by the commissioner under RSA 155:71.

155:71 Complaints; Investigations; Confidentiality.

I. The commissioner, or designee, shall investigate any complaint regarding noncompliance with the provisions of this subdivision or rules adopted under it. The investigation shall include a full opportunity for the person in charge to be informed of and to address the complaint. If during the investigation a probable violation of this subdivision is found, or if the person in charge requests, an adjudication proceeding shall be carried out in accordance with RSA 541-A:31-36 prior to the department seeking a penalty under RSA 155:72, III.

II. The name of any person registering a complaint regarding noncompliance shall not be divulged by the department in any correspondence or meetings, nor shall it be made available over the telephone, unless specific written approval has been given to do so by the complainant. All complaints, except names, shall be a public record for purposes of RSA 91-A. The name of any complainant who requests anonymity, however, shall not be revealed under RSA 91-A.

155:72 Enforcement; Administrative Fines.

I. The person in charge, or designee, may call law enforcement authorities if any person refuses to refrain from smoking in an area where smoking is prohibited.

II. Any person who smokes in an enclosed public place where lighted tobacco products are prohibited shall be guilty of a violation and subject to a fine of not less than $100.

III. The commissioner, after notice and hearing and pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person in charge who repeatedly fails to comply with any of the provisions of this subdivision and rules adopted pursuant to it.

155:73 Fire Protection, Safety and Sanitation. Nothing in this subdivision shall be construed to permit smoking where smoking is prohibited by any other provision of law or rule relative to fire protection, safety, and sanitation.

155:74 Municipal Ordinances. Nothing in this subdivision shall be construed to restrict the power of any municipality to adopt local laws, ordinances, and regulations that are more stringent than this subdivision.

3 Effective Date. This act shall take effect January 1, 2001.

LBAO

00-2076

12/15/99

HB 1577-FN - FISCAL NOTE

FISCAL IMPACT:

METHODOLOGY: