Report Title:

Smoking

Description:

Prohibits smoking in restaurants and workplaces except for hotel rooms, nightclubs, and certain bars.

HOUSE OF REPRESENTATIVES

H.B. NO.

2

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO SMOKING.

 

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

SECTION 1. The legislature finds that there is a compelling public health and safety need to protect nonsmokers from the hazardous effects of exposure to secondhand smoke, or environmental tobacco smoke, in most areas of the State, in addition to those areas where smoking is already prohibited pursuant to chapter 328K, Hawaii Revised Statutes. In a report dated December 1992, the United States Environmental Protection Agency concluded that environmental tobacco smoke is responsible for approximately three thousand lung cancer deaths in nonsmoking adults each year in this country. The Environmental Protection Agency now classifies environmental tobacco smoke as a "Group A" carcinogen, a category that also includes asbestos and benzene.

While state law now prohibits smoking in most areas that are open to the public, the legislature finds that nonsmokers should have greater protection against environmental tobacco smoke in restaurants and workplaces.

Accordingly, the purpose of this Act is to extend the prohibitions against smoking to restaurants and workplaces. Exceptions are made for bars, hotel rooms, and nightclubs.

SECTION 2. Section 328K-1, Hawaii Revised Statutes, is amended as follows:

(1) By adding a new definition of "nightclub" to be appropriately inserted and to read as follows:

""Nightclub" means a bar in which live entertainment or recorded music is provided and in which facilities for dancing by the patrons are provided."

(2) By amending the definition of "bar" to read as follows:

""Bar" means a place devoted to the serving of alcoholic beverages for on-site consumption by patrons and where the service of food is only incidental to the consumption of such beverages. [A food service establishment may contain a bar, but the term bar shall not include the dining area of a food service establishment.] For the purposes of this part, a food service establishment that contains a bar, where the bar is not separated by a floor to ceiling solid wall and is not separately ventilated, is considered a restaurant."

(3) By amending the definition of "restaurant" to read as follows:

""Restaurant" means any retail eating establishment where meals or food are served or provided for on-site consumption by seated patrons that is authorized by the department of health to operate as a food service establishment, except:

[(1) Any food service establishment with a seating capacity of fifty or fewer patrons;

(2)] (1) Any food service establishment while it is being used solely for private parties or gatherings;

[(3) Any enclosed room of a food service establishment or a banquet room [used] solely for private parties or gatherings;

(4)] (2) Any private food service establishment or club in which only members or their guests are permitted;

[(5)] (3) Any seating area completely outside the building housing the food service establishment[;] that is separated from the building by a floor to ceiling wall, with or without a closable door or closable serving window, and that has no other uncovered, meshed, or draped opening through which air may pass; or

[(6)] (4) Bars."

(4) By repealing the definition of "small business":

[""Small business" means those business establishments having not more than five employees working on the business premises per established workshift."]

SECTION 3. Section 328K-2, Hawaii Revised Statutes, is amended to read as follows:

"328K-2 Prohibition in certain places open to the public. Except as otherwise provided in this part, smoking shall be prohibited in the following places within the State:

(1) Elevators in buildings open to and used by the public, including elevators in apartment and other multi-unit residential buildings;

(2) [Semiprivate] Patient rooms, wards, waiting rooms, lobbies, and public hallways of public and private health care facilities, including, but not limited to, hospitals, clinics, and physicians' and dentists' offices. [Smoking shall be permitted in a private room or in a semiprivate room when there is no objection by any patient occupying such room;]

(3) Restaurants[.

(A) All restaurants shall provide nonsmoking areas which are reasonably proportionate to the preference of the users and so located as to obtain the maximum effect of existing physical barriers and ventilation systems, and seating arrangements, to minimize the toxic effect of smoke in adjacent nonsmoking areas; provided no fixed structural or other physical modifications of the restaurant shall be required; and

(B) Nothing in this paragraph shall prevent a proprietor or person in charge of a facility from designating the entire restaurant as a nonsmoking area. Owners or proprietors of restaurants may expand or contract the size of designated nonsmoking areas to meet the requirements of their patrons;], except that smoking shall be permitted in a restaurant as follows:

(A) In a separate open air area of a restaurant when the business operating the restaurant refrains from designating the area as nonsmoking;

(B) Until June 30, 2005, smoking shall be permitted in a separate bar area of a restaurant when the business operating the restaurant refrains from designating the area as nonsmoking. A "separate bar area of a restaurant" means an indoor area of a restaurant that is in compliance with all of the following:

(i) The area is devoted primarily to the serving of alcoholic beverages for consumption by patrons in the area;

(ii) On a monthly basis, the gross sales of food to patrons for consumption in the area are less than one-third of the gross sales of alcoholic beverages to patrons for consumption in the area;

(iii) The area is separately ventilated from any dining area of the restaurant; and

(iv) The area is totally separated from any dining area of the restaurant by a floor to ceiling solid wall without any opening or with a closable doorway that stays closed except when a person passes through, but no other opening. The solid wall may have an unopenable plate glass window.

From July 1, 2005, this paragraph shall not be operative and smoking shall be prohibited in any separate bar area of a restaurant;

(4) Any room which is used primarily for exhibiting any motion picture, stage drama, dance, musical performance, or other similar performance during the time that the room is open to the public for such performance;

(5) Museums, libraries, and galleries;

(6) The following facilities or areas in state or county owned or controlled buildings:

(A) Meeting or conference rooms;

(B) Auditorium or sports areas that are enclosed;

(C) Community centers where persons may gather for meetings, parties, or any other purpose where the area is enclosed;

(D) Waiting areas, baggage claim areas, and check-in counters within buildings in all state airports; and

(E) All areas open to the public, including service counters and reception or waiting areas;

(7) Except as otherwise provided in this section, all areas open to the public in the following business establishments:

(A) Banks;

(B) Credit unions;

(C) Financial services loan companies;

(D) [Retail stores; and

(E)] Hotels, except individual hotel rooms;

(E) Retail stores;

(F) Schools; and

(G) Savings and loan associations;

(8) Any restroom open to the public;

(9) Taxicabs, when carrying nonsmoking passengers;

(10) Cruise ships. The dining area of all cruise ships shall include a nonsmoking area which is reasonably proportionate to the preference of the users and so located as to obtain the maximum effect of existing physical barriers and ventilation systems, and seating arrangements, to minimize the toxic effect of smoke; provided no fixed structural or other physical modifications of the cruise ship shall be required. This paragraph shall not apply to any cruise ship that does not serve any food or meals during its course of operation, or where the service of food is only incidental to the consumption of alcoholic beverages; and

(11) Notwithstanding the exceptions stated in section 328K-3, any area open to the public which has been designated by the person having control of the area as a nonsmoking area and marked with a "no smoking" sign."

SECTION 4. Section 328K-3, Hawaii Revised Statutes, is amended to read as follows:

"328K-3 Exceptions. Smoking shall not be prohibited under this part in the following places subject to section 328K-2:

(1) [Small businesses;] Any bar, except for a bar that is within an enclosed or partially enclosed food court. For the purposes of this section, "enclosed or partially enclosed" area is any area for human occupancy that is contained on two or more sides by walls and is covered by a roof, ceiling, or overhang, such that the area of all permanent openings from the space to the open air is less than fifty per cent of the combined areas of the walls and ceiling, roof, or overhang; or

(2) [Retail stores with less than 5000 square feet of floor space.] Any nightclub."

SECTION 5. Section 328K-4, Hawaii Revised Statutes, is amended to read as follows:

"[[]328K-4[]] Signs. (a) Clearly legible signs which include the words "Smoking Prohibited by Law" with letters of not less than one inch in height shall be conspicuously posted by the persons having control of such places open to the public where smoking is prohibited.

(b) ["SMOKING PROHIBITED BY LAW"] "Smoking prohibited by law" signs shall be posted in areas adjacent to smoking areas so that a clear delineation exists.

(c) [In the case of any restaurant designated as a smoking area in its entirety, the restaurant owner or manager shall post a sign stating, "This entire establishment is a SMOKING area," or a similar statement. The sign shall be posted conspicuously at all entrances normally used by the public.

(d) Restaurants with controlled seating, where patrons do not seat themselves, may place a sign at the dining area entry which indicates the availability of smoking and nonsmoking areas upon request in lieu of the posting requirements of this section.] Alternate means of notification may be employed."

SECTION 6. Section 328K-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) It is a violation for any person to violate any of the provisions of this part.

Every person who violates any provision of this part for which another penalty is not provided, for a conviction thereof, shall be fined not more than [$20 to be deposited into the state general fund.] $500 for a first violation. A person shall be fined not more than $1,000 for a second violation within one year of the date of the first violation. A person shall be fined not more than $1,000 for each additional violation of this part within one year of the date of a preceding violation. Fines shall be deposited into the state general fund. The district courts may assess costs not to exceed $25 for issuing a penal summons upon any person who fails to appear at the place within the time specified in the citation issued to the person."

SECTION 7. Section 328K-12, Hawaii Revised Statutes, is amended as follows:

(1) By adding two new definitions to be appropriately inserted and to read as follows:

""Commercial building" means a building occupied by two or more commercial tenants.

"Workplace" means any state or county agency, or any private corporation, firm, association, sole proprietorship, partnership, joint venture, business trust, limited liability company, professional corporation, or other business entity formed for profit-making purposes, or charitable organization with two or more employees."

(2) By amending the definitions of "employee" and "enclosed" to read as follows:

""Employee" means any person who is employed [more than twenty hours per week by any employer] in consideration for direct or indirect monetary wages or profit.

"Enclosed" or partially enclosed means [closed in by a roof and four walls with openings for ingress and egress.] any area for human occupancy that is contained on two or more sides by walls and is covered by a roof, ceiling, or overhang, such that the area of all permanent openings from the space to the open air is less than fifty per cent of the combined areas of the walls and ceiling, roof, or overhang. Areas commonly described as public lobbies are [not] enclosed for the purposes of this chapter."

(3) By repealing the definition of "employer":

[""Employer" means any state or county agency, or any private corporation, firm, or association which receives state funds under chapter 42F or chapter 103F."]

(4) By repealing the definitions of "office workplace" and "simple majority":

[""Office workplace" means any enclosed structure or portion thereof used by an employer.

"Simple majority" means any number greater than half of the persons expressing a preference in any specific work area."]

SECTION 8. Section 328K-13, Hawaii Revised Statutes, is amended to read as follows:

"[[]328K-13[]] Regulation of smoking in the [office] workplace. [(a) Each employer in the State shall within three months after June 24, 1987, adopt, implement, and maintain a written smoking policy which shall contain, at the minimum, the following provisions and requirements:

(1) That if any nonsmoking employee objects to the employer about smoke in the employee's workplace, the employer, using already available means of ventilation or separation or partition of office space, shall attempt to reach a reasonable accommodation, insofar as possible, between the preferences of nonsmoking and smoking employees; provided that an employer is not required by this chapter to make any expenditures or structural changes to accommodate the preferences of nonsmoking or smoking employees; and

(2) That if an accommodation which is satisfactory to all affected employees cannot be reached in any given office workplace, the preferences of a simple majority of employees in each specifically affected area shall prevail and the employer shall accordingly prohibit or allow smoking in that particular area of the office workplace. If the employer's decision is unsatisfactory to the nonsmoking employees, a simple majority of all nonsmoking employees can appeal to the director of health for the determination of a reasonable accommodation. Where the employer prohibits smoking in an office workplace, the area in which smoking is prohibited shall be clearly marked with signs.

(b) The smoking policy shall be announced within two weeks of the vote of preferences of the employees in each respective work area and posted conspicuously in all the affected workplaces.] Except as otherwise provided in this part, smoking shall be prohibited in all enclosed or partially enclosed commercial buildings and all enclosed or partially enclosed workplaces in the State."

SECTION 9. Section 328K-14, Hawaii Revised Statutes, is amended to read as follows:

"[[]328K-14[]] Where smoking not regulated. This chapter does not regulate smoking in the following places and under the following conditions within the State:

(1) Any property owned or leased by federal governmental entities; [or

(2) Private enclosed office workplaces occupied exclusively by smokers, even though such office workplaces may be visited by nonsmokers, excepting places in which smoking is prohibited by a county fire department or by other law, ordinance, rule, or regulation.]

(2) Private residences, except when used as a child care, adult day care, or health care facility;

(3) Any bar that is not within an enclosed or partially enclosed food court pursuant to section 328K-3(1)

(4) Any hotel room; or

(5) Any nightclub."

SECTION 10. Section 328K-15, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Any person who violates section 328K-13 shall be liable for a civil penalty not to exceed $500[, which] for a first violation. A person shall be fined not more than $1,000 for a second violation within one year of the date of the first violation. A person shall be fined not more than $1,000 for each additional violation of this part within one year of the date of the preceding violation. The penalty shall be assessed and recovered in a civil action in any court of competent jurisdiction. Each day [such] a violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. Any penalty assessed and recovered in an action brought pursuant to this section shall be paid to the general fund."

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect upon its approval.

INTRODUCED BY:

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