Columbus, Georgia

SB 90



Summary:



Prohibit smoking in certain facilities and areas; to state findings; to provide

for definitions; to provide for exceptions; to provide for posting of signs; to

provide for violations, penalties, and state and local government enforcement

and administration; to provide for construction; to provide that this

prohibition shall be cumulative to other general or local acts, rules, and

regulations; to repeal a former prohibition against smoking in public places;

to provide for related matters; to repeal conflicting laws; and for other

purposes.



--------------------------------------------------------------------------------

----------------------------



A BILL TO BE ENTITLED

AN ACT





To amend Chapter 12 of Title 16 of the Official Code of Georgia Annotated,

relating to offenses against public health and morals, so as to enact the

"Georgia Smokefree Air Act of 2005"; to prohibit smoking in certain facilities

and areas; to state findings; to provide for definitions; to provide for

exceptions; to provide for posting of signs; to provide for violations,

penalties, and state and local government enforcement and administration; to

provide for construction; to provide that this prohibition shall be cumulative

to other general or local acts, rules, and regulations; to repeal a former

prohibition against smoking in public places; to provide for related matters;

to repeal conflicting laws; and for other purposes.





BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:





SECTION 1.

This Act shall be known and may be cited as the "Georgia Smokefree Air Act of

2005."





SECTION 2.

Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to

offenses against public health and morals, is amended by adding a new Article 8

to read as follows:





ARTICLE 8





16_12_180.

The General Assembly finds that:

(1) 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 up to 65,000 Americans annually;

(2) The Public Health Service?s National Toxicology Program has listed

secondhand smoke as a known carcinogen;

(3) 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.

Children exposed to secondhand smoke have an increased risk of asthma,

respiratory infections, sudden infant death syndrome, developmental

abnormalities, and cancer;

(4) The federal Americans with Disabilities Act of 1990, which requires that

disabled persons have access to public places and workplaces, deems impaired

respiratory function to be a disability;

(5) The U.S. Surgeon General has determined that the simple separation of

smokers and nonsmokers within the same air space may reduce, but does not

eliminate, the exposure of nonsmokers to secondhand smoke. The Environmental

Protection Agency has determined that secondhand smoke cannot be reduced to

safe levels in businesses by high rates of ventilation. Air cleaners, which are

only capable of filtering the particulate matter and odors in smoke, do not

eliminate the known toxins in 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) Smoke_filled workplaces result in higher worker absenteeism due to

respiratory disease, lower productivity, higher cleaning and maintenance costs,

increased health insurance rates, and increased liability claims for diseases

related to exposure to secondhand smoke;

(8) 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

smokefree. Creation of smokefree workplaces is sound economic policy and

provides the maximum level of employee health and safety;

(9) Smoking is a potential cause of fires; cigarette and cigar burns and ash

stains on merchandise and fixtures causes economic damage to businesses; and

(10) The purposes of this article are (A) to protect the public health and

welfare by prohibiting smoking in public places and places of employment; and

(B) to guarantee the right of nonsmokers to breathe smokefree air, and to

recognize that the need to breathe smokefree air shall have priority over the

desire to smoke.





16_12_181.

As used in this article, the term:

(1) 'Bar' means 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' means a sole proprietorship, partnership, joint venture,

corporation, or other business entity formed for profit_making 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.

(3) 'Employee' means 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.

(4) 'Employer' means a person, business, partnership, association, corporation,

including a municipal corporation, trust, or nonprofit entity, that employs the

services of one or more individuals.

(5) '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.

(6) '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 within these professions. This

definition shall include all waiting rooms, hallways, private rooms,

semiprivate rooms, and wards within health care facilities.

(7) 'Place of employment' means 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, employee lounges,

restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias,

and hallways. A private residence is not a place of employment unless it is

used as a child care, adult day_care, or health care facility.

(8) '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, bars,

educational facilities, health care facilities, laundromats, public

transportation 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.

(9) 'Restaurant' means 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 shall include a bar

area within the restaurant.

(10) 'Retail tobacco store' means a retail store utilized primarily for the

sale of tobacco products and accessories and in which the sale of other

products is merely incidental.

(11) 'Service line' means an indoor 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.

(12) 'Shopping mall' means an enclosed public walkway or hall area that serves

to connect retail or professional establishments.

(13) 'Smoking' means inhaling, exhaling, burning, or carrying any lighted

cigar, cigarette, pipe, weed, plant, or other combustible substance in any

manner or in any form.

(14) 'Sports arena' means 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.

(15) 'Stand_alone bar' means any licensed premises devoted during any time of

operation predominantly or totally to serving alcoholic beverages, intoxicating

beverages, or intoxicating liquors, or any combination thereof, for consumption

on the licensed premises, including, but not limited to, taverns, cigar bars,

nightclubs, cocktail lounges, and cabarets, in which the serving of food, if

any, is merely incidental to the consumption of any such beverage and the

licensed premises is not located within, and does not share any common entryway

or common indoor area with, any other enclosed indoor restaurant, including any

business for which the sale of food or any other product or service is more

than an incidental source of gross revenue. A place of business constitutes a

stand_alone bar in which the service of food is merely incidental in accordance

with this paragraph if the licensed premises derives no more than 20 percent of

its gross revenue from the sale of food consumed on the licensed premises.





16_12_182.

All enclosed facilities of, including buildings owned, leased, or operated by,

the State of Georgia, any unit of local government of the state, or any entity

of state or local government shall be subject to this article.





16_12_183.

Smoking shall be prohibited in all enclosed public places in this 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,

professional offices, banks, laundromats, hotels, and motels;

(3) Bars, but which shall not include stand_alone bars;

(4) Bingo facilities when a bingo game is in progress;

(5) Convention facilities;

(6) Elevators;

(7) Facilities primarily used for exhibiting a motion picture, stage, drama,

lecture, musical recital, or other similar performance;

(8) Health care facilities;

(9) Licensed child care and adult day_care facilities;

(10) Lobbies, hallways, and other common areas in apartment buildings,

condominiums, trailer parks, retirement facilities, nursing homes, and other

multiple_unit residential facilities;

(11) Polling places;

(12) Public transportation facilities, including buses and taxicabs, and

ticket, boarding, and waiting areas of public transit depots;

(13) Restaurants;

(14) Restrooms, lobbies, reception areas, hallways, and other common use areas;

(15) Retail stores;

(16) Rooms, chambers, and places of meeting or public assembly when a public

meeting is in progress;

(17) Service lines;

(18) Shopping malls; and

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





16_12_184.

(a) Except as provided for in subsection (c) of this Code section, smoking

shall be prohibited in all enclosed facilities within places of employment,

including, but not limited to, common work areas, auditoriums, classrooms,

conference and meeting rooms, private offices, elevators, hallways, medical

facilities, cafeterias, employee lounges, stairs, restrooms, and all other

enclosed facilities.

(b) Such prohibition on smoking shall be communicated to all existing employees

by July 1, 2004, and to all prospective employees upon their application for

employment.

(c) This Code section shall not apply to private places of employment that have

fewer than 7 employees, except that smoking shall be prohibited in any public

reception area of such place of employment. This exception shall not apply to

restaurants.





16_12_185.

Smoking shall be prohibited within a reasonable distance of 25 feet, unless

such area is a public roadway or is property owned by another individual or

entity, outside an enclosed area where smoking is prohibited, so as to ensure

that tobacco smoke does not enter the area through entrances, windows,

ventilation systems, or other means.





16_12_186.

Notwithstanding any other provision of this article, the following areas shall

be exempt from the provisions of Code Sections 16_12_183 and 16_12_184:

(1) Private residences, except when used as a licensed child care, adult

day_care, or health care facility;

(2) Hotel and motel rooms that are rented to guests and are designated as

smoking rooms; provided, however, that not more than 20 percent of rooms rented

to guests in a hotel or motel may be so designated;

(3) Retail tobacco stores, provided that smoke from such stores does not

infiltrate into areas where smoking is prohibited under the provisions of this

article;

(4) Private and semiprivate rooms in nursing homes and long_term care

facilities that are occupied by one or more persons, all of whom are smokers

and have requested in writing to be placed in a room where smoking is

permitted;

(5) Outdoor areas of places of employment;

(6) Any automobile or vehicle;

(7) Stand_alone bars;

(8) Smoking areas in international airports, as such areas are designated by

the airport operator; and

(9) Corporate offices of tobacco manufacturers.

16_12_187.

Notwithstanding any other provision of this article, 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 Code Section 16_12_188 is

posted.





16_12_188.

(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 by the owner,

operator, manager, or other person in control in every public place and place

of employment where smoking is prohibited by this article.

(b) All ashtrays and other smoking paraphernalia shall be removed by the owner,

operator, manager, or other person in control from any area where smoking is

prohibited by this article.





16_12_189.

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

article or attempts to prosecute a violation of this article.





16_12_190.

(a) This article shall be enforced by the appropriate local government agency

or agencies designated by each unit of local government in this state.

(b) Each unit of local government in this state that issues business licenses

shall give notice of the provisions of this article to all applicants for a

business license.

(c) Any citizen who desires to register a complaint under this article may

initiate enforcement with the agency designated by a unit of local government

for enforcement.

(d) The health department and fire department of any unit of local government

shall, while an establishment is undergoing otherwise mandated inspections,

inspect for compliance with this article.

(e) An owner, manager, operator, or employee of an establishment regulated by

this article shall inform persons violating this article of the appropriate

provisions of this article.

(f) Any employee or private citizen may bring a legal action to enforce this

article.

(g) In addition to any other remedy provided by law, a local government agency

or any person aggrieved by the failure of the owner, operator, or other person

in control of a public place or place of employment to comply with the

provisions of this article may apply for injunctive relief to enforce those

provisions in any court of competent jurisdiction.





16_12_191.

(a) A person who smokes tobacco in any form in an area where smoking is

prohibited by the provisions of this article shall be guilty of a misdemeanor

and, upon conviction, shall be punished by a fine of not less than $50.00 nor

more than $100.00.

(b) A person who owns, manages, operates, or otherwise controls a public place

or place of employment and who fails to comply with the provisions of this

article shall be guilty of a misdemeanor and, upon conviction, shall be

punished as follows:

(1) For a first violation, a fine not exceeding $100.00;

(2) For a second violation within one year, a fine not exceeding $200.00; and

(3) For each additional violation within one year, a fine not exceeding $500.00.

(c) A person who owns, manages, operates, or otherwise controls a public place

or place of employment shall have no civil or criminal liability under this

article when such person has complied with the duty to post the premises as

required by subsection (a) of Code Section 16_12_188, the duty to remove

ashtrays and other smoking paraphernalia as required by subsection (b) of Code

Section 16_12_189, and the duty to inform violators of the provisions of this

article as required by subsection (e) of Code Section 16_12_190; provided,

however, that this exemption from liability shall not apply with respect to

wrongful discharge, refusal to hire, or retaliation which is prohibited by Code

Section 16_12_189.

(d) In addition to the fines established by this Code section, violation of

this article 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.

(e) Each day on which a violation of this article occurs shall be considered a

separate and distinct violation.





16_12_192.

The Department of Community Health and the agency designated by each unit of

local government in this state shall engage in a continuing program to explain

and clarify the purposes and requirements of this article 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 article.





16_12_193.

The agency designated by each unit of local government in this state shall

annually request other governmental and educational agencies having facilities

within the area of the local government to establish local operating procedures

in cooperation and compliance with this article.





16_12_194.

This article shall not be construed to permit smoking where it is otherwise

restricted by other applicable laws.





16_12_195.

This article shall be cumulative to and shall not prohibit the enactment of any

other general or local laws, rules, and regulations of state or local agencies

or local ordinances prohibiting smoking which are more restrictive than this

article.





16_12_196.

This article shall be liberally construed so as to further its purposes.





SECTION 3.

Said chapter is further amended by repealing Code Section 16_12_2, relating to

prohibited smoking in public places. This repeal shall not, however, abate the

prosecution of any offense committed prior to July 1, 2005.





SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.