Smoking in public places.

WORKING DRAFT
2007
STATE OF
WYOMING
07LSO-0191

HOUSE BILL
NO.
HB0141

Smoking in public places.

Sponsored by:
Representative(s) Zwonitzer, Dn., Blake, Davison, Dockstader,
Harvey
, Jaggi, Jorgensen, Millin, Petersen, Warren and Zwonitzer, Dv. and Senator(s) Cooper, Hastert and Massie

A BILL

for

AN ACT relating to
public health and safety; prohibiting smoking in certain public places and places of employment as specified; providing exceptions; providing penalties;
and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.
W.S. 35
‑
29
‑
101 through 35
‑
29
‑
11
0
are created to read:

CHAPTER 29
SMOKING IN PUBLIC PLACES

35
‑
29
‑
101.

Definitions.

(a)

As used in this chapter:

(i)

"
Business
"
means any legal entity including, but not limited to,
a
sole proprietorship, partnership, joint venture, corporation or other business entity whether formed for profit-making or nonprofit purposes, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered
;

(ii)

"
Employee
"
means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his services for a nonprofit entity
;

(iii)

"
Employer
"
means a person, business, partnership, association, corporation, trust, nonprofit entity or a municipal corporation that employs the services of one
(1)
or more individual persons
;

(iv)

"
Enclosed area
"
means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows, exclusive of doorways, which extend from the floor to the ceiling
;

(v)

"
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, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists and all specialists with
in
these professions. This definition shall include all waiting rooms, hallways, private rooms, semi-private rooms and wards with
in
health care facilities
;

(vi)

"
Outdoor patio
"
means an outdoor area, open to the air at all times, that is either:

(A)

Enclosed by a roof or other overhead covering and not more than two
(2)
walls or other side coverings; or

(B)

Has no roof or other overhead covering at all regardless of the number of walls or other side coverings.

(vi
i
)

"
Performance hall
"
means any area or facility that is primarily used for the exhibition of any motion picture, stage, drama, lecture, musical recital or other similar performances including, but not limited to, concert halls and theaters
;

(vi
ii
)

"
Place of employment
"
means an area under the control of an employer which is intended for occupancy by employees during the course of employment including, but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, waiting areas, offices, stairways and hallways. A private residence is not a
"
place of employment
"
unless it is used as a licensed child care, licensed adult day care, health care or
preschool
facility, or
for
any other business
;

(
ix
)

"
Private club
"
means those organizations or entities defined as a
"
club
"
in W
.S.
12
‑
1
‑
101(a)(iii), which are not open to the public
;

(
x
)

"
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 and other financial institutions, publicly funded buildings, public conveyances, recreational facilities, taverns, lounges, bars, educational facilities, health care facilities,
laundries
, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments including grocery stores, supermarkets and stores where food items are sold for on-premises or off-premises consumption, 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 licensed child care, licensed adult day care, health care or preschool facility
or for any
ot
her business
;

(
xi
)

"
Public transportation
vehicle
"
means, but is not limited to, any enclosed mode of public transportation, including a
taxi,
train, passenger bus, school bus or other vehicle used to transport pupils, or a vehicle that is owned by, or operated by a business and is open to the public, including tour vehicles, passenger buses or vans regularly used to transport customers.
A
private vehicle not open to the public or not used for the transportation of the public during the times of use, including a private passenger vehicle, a private charter or rental of a limousine, bus or van, shall not be considered
a
public transportation
vehicle
;

(x
ii
)

"
Publicly

o
wned
y
outh
a
thletic
f
acilities
"
includes, but is not limited to, facilities where youth soccer, baseball, skateboarding and any other youth activities occur, whether the facility is enclosed or not
;

(x
ii
i
)

"
Restaurant
"
means an eating establishment including, but not limited to, coffee shops, cafeterias, and public and private 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 and served elsewhere. The term
"
restaurant
"
shall include any tavern, lounge or bar area within the restaurant
;

(xi
v
)

"
Retail sales
establishment
"
mean
s

an
establishment engaged in the sale of goods or merchandise to the general public for personal or household consumption and rendering services incidental to the sale of
those
goods. A retail sales establishment is usually a place of business and is engaged in activity to attract the general public to make purchases
;

(x
v
)

"
Shopping mall
"
means an enclosed public walkway or hall area that serves to connect retail sale
s
or professional service establishments
;

(x
vi
)

"
Smoke
"
or
"
smoking
"
means the inhaling, exhaling, burning or carrying of any lighted tobacco product, weed, plant or other combustible product in a smoking instrument or the placement of smoking instruments containing a lighted tobacco product, weed, plant or other combustible product in an ashtray or other receptacle and allowing smoke to diffuse into the air. This definition does not include incense
;

(x
vii
)

"
Smoking instrument
"
means any cigar, cigarette, pipe, hookah or water pipe, or any other smoking device
;

(x
v
iii
)

"
Sports arena
"
means sports pavilions, stadiums, gymnasiums, health spas, 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
;

(x
ix
)

"
Tavern, lounge or bar
"
means any establishment open to the public whose primary source of revenue is from the sale of alcoholic liquor and malt 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
;

(x
x
)

"
Youth
"
means any person who has not attained
eighteen (
18
)
years of age.

35
‑
29
‑
102.

Application of chapter to
government
owned facilities.

All enclosed areas, including buildings and vehicles owned, leased or operated by the
state of
Wyoming
or any city, town, county or other governmental
entity
, shall be subject to the provisions of this chapter.

35
‑
29
‑
103.

Prohibition of smoking in public places.

(a)

S
moking
is
prohibited in all enclosed ar
eas of public places within this state
including, but not limited to, the following:

(i)

Galleries, libraries and museums;

(ii)

Areas available to and customarily used by the general public in businesses and for-profit or nonprofit entities patronized by the public including, but not limited to, professional offices, banks,
laundries
, hotels and motels;

(iii)

Bingo or pull tab gaming premises;

(iv)

Convention facilities;

(v)

Elevators;

(vi)

Taverns, lounges or bars;

(vii)

Health care facilities;

(viii)

Licensed child care, adult day care and
preschool
facilities;

(ix)

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

(x)

Performance halls;

(xi)

Election polling places;

(xii)

Private clubs;

(xiii)

Restaurants;

(xiv)

Restrooms, lobbies, reception areas, hallways and other common-use areas;

(xv)

Retail
sales establishments
;

(xvi)

Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of an
y governmental
agency, board, commission, committee or governing body;

(xvii)

Shopping malls;

(xviii)

S
ports arenas and convention halls, including bowling facilities;

(xix)

Public transportation
vehicles
;

(xx)

Publicly

o
wned
y
outh
a
thletic
f
acilities.

35
‑
29
‑
104.

Prohibition of smoking in places of employment.

(a)

Smoking
is
prohibited in all enclosed areas within places of employment including, but not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, public transportation vehicles and all other enclosed facilities.

(b)

Employers affected by this chapter shall communicate the provisions of this chapter to all existing employees
on

July 1, 2007,
and to all prospective employees on their application for employment.

35
‑
29
‑
105.

Distance to be observed from all entryways where smoking is prohibited.

In order to prevent secondhand smoke from entering a public place or place of employment where smoking is prohibited, every person who is smoking shall smoke a distance of at least ten (10) feet from all public entranceways, passageways, operable windows or ventilation systems of any enclosed area where smoking is prohibited. Any person who fails to comply with this provision after an oral request to cease smoking by the owner, operator, manager or other person having control of the smoke-free establishment or enclosed area shall be in violation of the provisions of this chapter.

35
‑
29
‑
106.

Declaration of establishment as nonsmoking.

Notwithstanding any other provision of this chapter, an owner, operator, manager or other person in control of an establishment, facility or outdoor area may declare that entire establishment, facility or outd
oor area as a nonsmoking place.

35
‑
29
‑
107.

Where smoking is not regulated.

(a)

Notwithstanding any other provision of this chapter to the contrary, the following areas shall be exempt from the provisions of
W.S. 35
‑
29
‑
103 and 35
‑
29
‑
104
:

(i)

Private residences, except when used as a licensed child care, licensed adult day care,
preschool
or health care facilities
or for any other business
;

(ii)

Hotel and motel rooms that are rented to guests and are designated as smoking rooms;

(iii)

Outdoor places of employment, except those
areas where smoking is restricted under W.S. 35
‑
29
‑
105
;

(iv)

Private offices, provided that the private office is not open to
the
public, the public is not invited, and the office is not intended for occupancy by employees during the course of their employment;

(v)

Outside
p
atios. The opening of any sliding or folding windows or doors or other windows or doors from any part of the border to an outdoor patio shall be closed to prevent the migration of smoke into the enclosed area. If sliding or folding windows or doors or other windows or doors do not prevent the migration of smoke into the enclosed building area, the outdoor patio shall be considered an extension of the enclosed area and subject to the prohibitions of this chapter;

(vi)

Private or business vehicles, except those used for public transportation
;

(vi
i
)

Retail tobacco shops
, consisting of
any enclosed indoor workplace dedicated to or predominantly for the retail sale of tobacco products, and accessories for such products, in which the sale of other products or services is incidental
.

35
‑
29
‑
10
8
.

Nonretaliation.

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 chapter or reports or attempts to prosecute a violation of this chapter.

35
‑
29
‑
1
09
.

Violations and penalties.

(a)

A person who violates the provisions of this chapter
by smoking in a prohibited area
is guilty of a misdemeanor
punishable by a fine of not more than:

(i)

Fifty dollars ($50.00) for a first violation;

(ii)

Two hundred fifty dollars ($250.00) for a second violation committed within a twenty-four (24) month period;

(iii)

Seven hundred fifty dollars ($750.00) for a third or subsequent violation committed within a twenty-four (24) month period.

(b)

Failure of the owner, manager, operator or employee of an establishment to orally inform a person who smokes in an area where smoking is prohibited by the provisions of this chapter

shall not constitute a defense
to a violation under subsection (a) of this section
.

(
c
)

A person who owns, manages, operates or otherwise controls a public place or place of employment and who knowingly fails to comply with the provisions of this chapter
is
guil
ty of a misdemeanor
punishable by a fine of not more than:

(i)

Fifty dollars ($50.00) for a first violation;

(ii)

Two hundred fifty dollars ($250.00) for a second violation committed within a twenty-four (24) month period;

(iii)

Seven hundred fifty dollars ($750.00) for a third or subsequent violation committed within a twenty-four (24) month period.

(d)

For purposes of subsection (c) of this section, each day of continued violation shall be deemed a separate offense.

35
‑
29
‑
1
10
.

Applicability
.

(a)

This chapter shall constitute a statewide prohibition on smoking in public places and places of employment and shall supersede any conflicting local ordinance, provided:

(i)

Any county, by unanimous vote of its board of county commissioners, may opt out of the provisions of this chapter for a period of two (2) years. The decision to opt out of the provisions of this chapter may be extended thereafter for additional periods of two (2) years each by unanimous vote of the board of county commissioners;

(ii)

Nothing in this chapter shall prevent a city, town or county from imposing additional restrictions upon smoking in public places or places of employment, or imposing greater penalties for violations than those provided in this chapter.

Section 2.
This act is effect
ive July 1, 200
7
.

(END)

1
HB0141