BILL REQ. #:  H-5360.2 

Read first time 03/02/2006.   Referred to Committee on Health Care.

     AN ACT Relating to application of the Washington clean indoor air act; amending RCW 70.160.020, 70.160.030, 70.160.050, and 70.160.070; adding new sections to chapter 70.160 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature recognizes the will of the people strongly expressed by passage of Initiative Measure No. 901 to prohibit smoking in many places. A clear message was sent that people do not want to be exposed unwillingly to second-hand smoke.
     (2) The legislature finds that other states that have passed smoking bans have provided exceptions for key establishments and settings.
     (3) The legislature further finds that since Initiative Measure No. 901 exempted private offices and the people that work in them from the initiative, other exemptions should be created.
     (4) The legislature also finds that the general understanding of Initiative Measure No. 901 is that it did not prohibit people from smoking in their own homes or in select commercial settings where one would expect to find smoking. The initiative defines public places to include adult care private residences and, therefore, it applies to assisted living facilities, veterans' homes, nursing homes, and adult family homes, places that are the homes or social gathering spots of the residents. Some of these residents still smoke, and consider it one of their few remaining "pleasures" in life. Typically they smoke in a separate, ventilated safe room in the facility. Under Initiative Measure No. 901, these designated smoking rooms are prohibited. The legislature has long recognized that residents who live in long-term care facilities should have the opportunity to exercise reasonable control over life decisions, that the right of choice enhances the quality of life for residents, and that residents should not lose their rights because they live in a care facility.
     (5) The legislature further finds that members of bona fide private clubs, many who are veterans organizations, are now excluded from socializing on a basis that has been done for decades.
     (6) Next, such places as cigar bars and retail cigar stores that were never expected by the public to be banned are no longer allowed to operate. Initiative Measure No. 901 has closed these establishments and they are now struggling for their financial existence.

Sec. 2   RCW 70.160.020 and 2006 c 2 s 2 (Initiative Measure No. 901) are each amended to read as follows:
     As used in this chapter, the following terms have the meanings indicated unless the context clearly indicates otherwise.
     (1) "Smoke" or "smoking" means the carrying or smoking of any kind of lighted pipe, cigar, cigarette, or any other lighted smoking equipment.
     (2) "Public place" means that portion of any building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned in whole or in part by private persons or entities, the state of Washington, or other public entity, and regardless of whether a fee is charged for admission, and includes a presumptively reasonable minimum distance, as set forth in RCW 70.160.075, of twenty-five feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited. A public place does not include a private residence unless the private residence is used to provide licensed child care, foster care, adult care, or other similar social service care on the premises.
     Public places include, but are not limited to: Schools, elevators, public conveyances or transportation facilities, museums, concert halls, theaters, auditoriums, exhibition halls, indoor sports arenas, hospitals, nursing homes, health care facilities or clinics, enclosed shopping centers, retail stores, retail service establishments, financial institutions, educational facilities, ticket areas, public hearing facilities, state legislative chambers and immediately adjacent hallways, public restrooms, libraries, restaurants, waiting areas, lobbies, bars, taverns, bowling alleys, skating rinks, casinos, reception areas, and no less than seventy-five percent of the sleeping quarters within a hotel or motel that are rented to guests. A public place does not include a private residence. This chapter is not intended to restrict smoking in private facilities which are occasionally open to the public except upon the occasions when the facility is open to the public.
     (3) "Place of employment" means any area under the control of a public or private employer which employees are required to pass through during the course of employment, including, but not limited to: Entrances and exits to the places of employment, and including a presumptively reasonable minimum distance, as set forth in RCW 70.160.075, of twenty-five feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited; work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas. A private residence or home-based business, unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premises, is not a place of employment.
     (4) "Cigar bar" means an establishment that sells alcohol and food, sells cigars on the premises, has an in-house humidor, is advertised clearly as a cigar bar, does not admit anyone under twenty-one years of age, and is enclosed and separately ventilated.
     (5) "Retail tobacco shop" means an establishment that (a) holds itself out to the public as being devoted primarily to the on-site sale of tobacco, tobacco products, and tobacco product accessories; and (b) derives not less than fifty percent of its total annual gross income from the on-site sale of tobacco, tobacco products, and tobacco product accessories. If a tobacco shop is located in an enclosed shopping mall, a hotel, or any other building used for multiple purposes or if it shares premises with another business, the tobacco shop must be completely enclosed and separately ventilated.
     (6) "Private club" means a bona fide private club, licensed by the liquor control board under RCW 66.24.450 or a restaurant not serving the general public licensed by the liquor control board under RCW 66.24.425. A "private club" must be either a free standing facility or enclosed and separately ventilated and may not admit anyone under eighteen years of age.
     (7) "Cigar humidor" means a container designed for storing cigars or other tobacco products at a constant level of humidity.
     (8) "Theatrical production site" means any production site where smoking by the actor or actors is an integral part of the story.
     (9) "Long-term care facility" means a facility or home as defined in RCW 43.190.020 (1) or (2), and includes but is not limited to nursing homes, assisted living facilities, boarding homes, adult family homes, and veterans homes.
     (10) "Designated smoking area in a long-term care facility" means an indoor or outdoor smoking area that meets the standards set forth in section 7 of this act.
     (11) "Enclosed and separately ventilated" means an area that is enclosed by solid walls or windows, a ceiling, and a solid door, and equipped with a ventilation system that is separately exhausted from any adjacent nonsmoking areas so that air from such area is not recirculated to such nonsmoking areas and smoke is not backstreamed into nonsmoking areas.
     (12) "Department" means the department of licensing.

Sec. 3   RCW 70.160.030 and 2006 c 2 s 3 (Initiative Measure No. 901) are each amended to read as follows:
     No person may smoke in a public place or in any place of employment except in a cigar bar, retail tobacco shop, private club, theatrical production site, or designated smoking area in a long-term care facility, licensed by the department under section 6 of this act.

Sec. 4   RCW 70.160.050 and 2006 c 2 s 4 (Initiative Measure No. 901) are each amended to read as follows:
     Owners, or in the case of a leased or rented space the lessee or other person in charge, of a place regulated under this chapter shall prohibit smoking in public places and places of employment, except in a cigar bar, retail tobacco shop, private club, theatrical production site, or designated smoking area in a long-term care facility, licensed by the department under section 6 of this act, and shall post signs prohibiting smoking as appropriate under this chapter. Signs shall be posted conspicuously at each building entrance. In the case of retail stores and retail service establishments, signs shall be posted conspicuously at each entrance and in prominent locations throughout the place.

Sec. 5   RCW 70.160.070 and 2006 c 2 s 5 (Initiative Measure No. 901) are each amended to read as follows:
     (1) Any person intentionally violating this chapter by smoking in a public place or place of employment, except in a cigar bar, retail tobacco shop, private club, theatrical production site, or designated smoking area in a long-term care facility, licensed by the department under section 6 of this act, or any person removing, defacing, or destroying a sign required by this chapter, is subject to a civil fine of up to one hundred dollars. Any person passing by or through a public place while on a public sidewalk or public right of way has not intentionally violated this chapter. Local law enforcement agencies shall enforce this section by issuing a notice of infraction to be assessed in the same manner as traffic infractions. The provisions contained in chapter 46.63 RCW for the disposition of traffic infractions apply to the disposition of infractions for violation of this subsection except as follows:
     (a) The provisions in chapter 46.63 RCW relating to the provision of records to the department of licensing in accordance with RCW 46.20.270 are not applicable to this chapter; and
     (b) The provisions in chapter 46.63 RCW relating to the imposition of sanctions against a person's driver's license or vehicle license are not applicable to this chapter.
     The form for the notice of infraction for a violation of this subsection shall be prescribed by rule of the supreme court.
     (2) When violations of RCW 70.160.050 occur, a warning shall first be given to the owner or other person in charge. Any subsequent violation is subject to a civil fine of up to one hundred dollars. Each day upon which a violation occurs or is permitted to continue constitutes a separate violation.
     (3) Local health departments shall enforce RCW 70.160.050 regarding the duties of owners or persons in control of public places and places of employment by either of the following actions:
     (a) Serving notice requiring the correction of any violation; or
     (b) Calling upon the city or town attorney or county prosecutor or local health department attorney to maintain an action for an injunction to enforce RCW 70.160.050, to correct a violation, and to assess and recover a civil penalty for the violation.

NEW SECTION.  Sec. 6   A new section is added to chapter 70.160 RCW to read as follows:
     (1) The department shall issue a transferable license for a cigar bar, retail tobacco shop, private club, theatrical production site, or designated smoking area in a long-term care facility, if the applicant pays any applicable fee established by the department and shows to the satisfaction of the department that the establishment is, and has been since January 1, 2004, a cigar bar, retail tobacco shop, private club, theatrical production site, or designated smoking area in a long-term care facility, as defined in RCW 70.160.020.
     (2) The department shall adopt application forms, application fees, renewal fees, penalty fees, and the frequency of renewal by rule. The fees charged by the department must cover the costs of establishing and maintaining the licensing program in accordance with RCW 43.24.086.
     (3) The department shall adopt rules as necessary to implement this section.

NEW SECTION.  Sec. 7   A new section is added to chapter 70.160 RCW to read as follows:
     Smoking by residents living in long-term care facilities is permitted in a designated smoking area that meets the following standards:
     (1) The designated smoking area cannot be located in a common area, including but not limited to entrances, lobbies, hallways, dining rooms, activity rooms, or meeting rooms, where employees, visitors, or nonsmoking residents are required to enter or pass through for work, visits, or services.
     (2) An indoor designated smoking area must be enclosed and separately ventilated as defined in RCW 70.160.020. The indoor area must meet the stricter of any applicable indoor air exposure limits set by the department of labor and industries or the department of health for vapor phase nicotine and carbon monoxide. Long-term care facilities whose designated smoking areas met the standards as they existed prior to the enactment of Initiative Measure No. 901 are permitted to continue to use those designated smoking areas. If either the department of labor and industries or the department of health adopts stricter exposure standards by rule, the facility shall comply with the stricter standards.
     (3) An outdoor designated smoking area must be covered and protected from inclement weather, identified with signs, and reachable by a nonhazardous pathway. The outdoor area may be located no closer than fifteen feet from entrances, exits, operable windows, and ventilation intakes that serve an enclosed nonsmoking area. The outdoor area must be closed on at least one side to minimize smoke infiltration into the facility and must have an outdoor filter system to help absorb smoke when the outdoor smoking area is in use.
     (4) Prospective employees and residents must be informed as to whether the facility has a designated smoking area. No employee may be required to enter a designated smoking area while in use. Cleaning and maintenance of the designated smoking area may not occur when smokers are present. Persons under the age of eighteen are prohibited from entering or performing any duties in a designated smoking area.
     (5) The department of labor and industries and the department of health may adopt rules as needed to implement this section.