SENATE BILL NO. 501 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the Senate Committee on Education and Health on January 31, 2008) (Patrons Prior to Substitute--Senators Locke and Northam) A BILL to amend and reenact §§ 15.2-2800, 15.2-2801, 15.2-2804, 15.2-2805, and 15.2-2806 of the Code of Virginia and to amend the Code of Virginia by adding in Title 32.1 a chapter numbered 16, consisting of sections numbered 32.1-370 through 32.1-377, relating to smoking in restaurants; civil penalties.

Be it enacted by the General Assembly of Virginia:

1.  That §§ 15.2-2800, 15.2-2801, 15.2-2804, 15.2-2805, and 15.2-2806 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Title 32.1 a chapter numbered 16, consisting of sections numbered 32.1-370 through 32.1-377 as follows:

§ 15.2-2800. Definitions.

As used in this chapter unless the context requires a different meaning:

"Bar or lounge area" means any establishment or portion of an establishment where one can consume alcoholic beverages and hors d'oeuvres, but excluding any such establishment or portion of the establishment having tables or seating facilities where, in consideration of payment, meals are served.

"Educational facility" means any building used for instruction of enrolled students, including, but not limited to, any day-care center, nursery school, public or private school, college, university, medical school, law school, or career and technical education school.

"Health care facility" means any institution, place, building, or agency required to be licensed under Virginia law, including, but not limited to, any hospital, nursing facility or nursing home, boarding home, assisted living facility, supervised living facility, or ambulatory medical and surgical center.

"Private work place" means any office or work area that is not open to the public in the normal course of business except by individual invitation.

"Proprietor" means the owner or lessee of the public place, who ultimately controls the activities within the public place. The term "proprietor" includes corporations, associations, or partnerships as well as individuals.

"Public conveyance" or "public vehicle" means any air, land, or water vehicle used for the mass transportation of persons in intrastate travel for compensation, including, but not limited to, any airplane, train, bus, or boat that is not subject to federal smoking regulations.

"Public place" means any enclosed, indoor area used by the general public, including, but not limited to, any building owned or leased by the Commonwealth or any agency thereof or any locality, public conveyance or public vehicle, restaurant, educational facility, hospital, nursing facility or nursing home, other health care facility, library, retail store of 15,000 square feet or more, auditorium, arena, theater, museum, concert hall, or other area used for a performance or an exhibit of the arts or sciences, or any meeting room.

"Recreational facility" means any enclosed, indoor area used by the general public and used as a stadium, arena, skating rink, video game facility, or senior citizen recreational facility.

"Restaurant" means any building, structure, or area, excluding a bar or lounge area as defined in this chapter, having a seating capacity of fifty or more patrons, where food is available for eating on the premises, in consideration of payment.

"Smoke" or "smoking" means the carrying or holding of any lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment, or the lighting, inhaling, or exhaling of smoke from a pipe, cigar, or cigarette of any kind.

"Theater" means any indoor facility or auditorium, open to the public, which is primarily used or designed for the purpose of exhibiting any motion picture, stage production, musical recital, dance, lecture, or other similar performance.

§ 15.2-2801. Statewide regulation of smoking.

A. The Commonwealth or any agency thereof and every locality shall provide reasonable no-smoking areas, considering the nature of the use and the size of the building, in any building owned or leased by the Commonwealth or any agency thereof or a locality. The provisions of this chapter shall not apply to office, work or other areas of the Department of Corrections which are not entered by the general public in the normal course of business or use of the premises.

B. Smoking shall be prohibited in (i) elevators, regardless of capacity, except in any open material hoist elevator, not intended for use by the public; (ii) public school buses; (iii) the interior of any public elementary, intermediate, and secondary school; (iv) hospital emergency rooms; (v) local or district health departments; (vi) polling rooms; (vii) indoor service lines and cashier lines; (viii) public restrooms in any building owned or leased by the Commonwealth or any agency thereof; (ix) the interior of a child day center licensed pursuant to § 63.2-1701 that is not also used for residential purposes; however, this prohibition shall not apply to any area of a building not utilized by a child day center, unless otherwise prohibited by this chapter; and (x) public restrooms of health care facilities.

C. Any restaurant having a seating capacity of fifty or more persons shall have a designated no-smoking area sufficient to meet customer demand. In determining the extent of the no-smoking area, the following shall not be included as seating capacity: (i) seats in any bar or lounge area of a restaurant and (ii) seats in any separate room or section of a restaurant which is used exclusively for private functions.

DC. The proprietor or other person in charge of an educational facility, except any public elementary, intermediate, or secondary school, health care facility, or a retail establishment of 15,000 square feet or more serving the general public, including, but not limited to, department stores, grocery stores, drug stores, clothing stores, shoe stores, and recreational facilities shall designate reasonable no-smoking areas, considering the nature of the use and the size of the building.

ED. The proprietor or other person in charge of a space subject to the provisions of this chapter shall post signs conspicuous to public view stating "Smoking Permitted" or "No Smoking,." and in restaurants, signs conspicuous to ordinary public view at or near each public entrance stating "No-Smoking Section Available." Any person failing to post such signs may be subject to a civil penalty of not more than twenty-five dollars.

FE. No person shall smoke in a designated no-smoking area and any person who continues to smoke in such area after having been asked to refrain from smoking may be subject to a civil penalty of not more than twenty-five dollars.

GF. Any law-enforcement officer may issue a summons regarding a violation of this chapter.

HG. The provisions of this chapter shall not be construed to regulate smoking in retail tobacco stores, tobacco warehouses or tobacco manufacturing facilities.

§ 15.2-2804. Mandatory provisions of ordinances.

Any ordinance shall provide that it is unlawful for any person to smoke in any of the following places:

1. Elevators, regardless of capacity;

2. The interior of any public elementary, intermediate, and secondary school;

3. Common areas in an educational facility, including, but not limited to, classrooms, hallways, auditoriums, and public meeting rooms;

4. Any part of a restaurant an educational facility, health care facility, recreational facility, or retail establishment designated a "no-smoking" area pursuant to the provisions of this chapter;

5. Indoor service lines and cashier areas; and

6. School buses and public conveyances.

§ 15.2-2805. Optional provisions of ordinances.

Any ordinance may provide that management shall designate reasonable no-smoking areas, considering the nature of the use and the size of the building, in the following places:

1. Retail and service establishments of 15,000 square feet or more serving the general public, including, but not limited to, department stores, grocery stores, drug stores, clothing stores, and shoe stores;

2. Rooms in which a public meeting or hearing is being held;

3. Places of entertainment and cultural facilities, including, but not limited to, theaters, concert halls, gymnasiums, auditoriums, other enclosed arenas, art galleries, libraries, and museums;

4. Indoor facilities used for recreational purposes; and

5. Other public places; and.

6. Any restaurant having a seating capacity of fifty or more persons shall have a designated no-smoking area sufficient to meet customer demand. In determining the extent of the no-smoking area, the following shall not be included as seating capacity: (i) seats in any bar or lounge area of a restaurant and (ii) seats in any separate room or section of a restaurant which is used exclusively for private functions.

§ 15.2-2806. Exceptions.

The provisions of §§ 15.2-2803 through 15.2-2805 shall not be construed to allow ordinances to regulate smoking in:

1. Bars and lounge areas;

21. Retail tobacco stores;

32. Restaurants, conferenceConference or meeting rooms, and public and private assembly rooms while these places are being used for private functions;

43. Office or work areas which are not entered by the general public in the normal course of business or use of the premises;

54. Areas of enclosed shopping centers or malls that are external to the retail stores therein, are used by customers as a route of travel from one store to another, and consist primarily of walkways and seating arrangements; and

65. Lobby areas of hotels, motels, and other establishments open to the public for overnight accommodation.

CHAPTER 16.

SMOKING IN RESTAURANTS.

§ 32.1-370. Definitions.

As used in this chapter unless the context requires a different meaning:

"Bar or lounge area" means any establishment or portion of an establishment devoted to the sale and service of alcoholic beverages for consumption on the premises, and where the sale or service of food is only incidental to the consumption of such beverages.

"Proprietor" means the owner, lessee or person who ultimately controls the activities within the restaurant, bar or lounge area. The term "proprietor" includes corporations, associations, or partnerships as well as individuals.

"Restaurant" means any place where food is given, served, or available for sale to the public for consumption on the premises. Types of restaurants include, but are not limited to, lunchrooms, short order places, cafeterias, coffee shops, cafes, taverns, and delicatessens. Excluded from the definition are places manufacturing packaged or canned foods that are distributed to grocery stores or other similar food retailers for sale to the public, push cart operations, hotdog stands, other mobile points of service, and private residences. The term "restaurant" may include a bar or lounge area that is located within a restaurant.

"Smoke" or "smoking" means the carrying or holding of any lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment, or the lighting, inhaling, or exhaling of smoke from a pipe, cigar, or cigarette of any kind.

§ 32.1-371. Applicability.

Nothing in this chapter shall be construed to permit smoking where it is otherwise prohibited or restricted by other applicable provisions of law.

§ 32.1-372. Prohibitions on smoking generally; exception.

A. In order to reduce the exposure to environmental tobacco smoke, smoking shall not be permitted and no person shall smoke in any restaurant, bar or lounge area in the Commonwealth.

B. Nothing in this section shall be construed to prohibit smoking in any outdoor area of a restaurant, bar or lounge area, provided such area is not enclosed by screened walls, roll-up doors, windows, or other seasonal or temporary enclosures, regardless or whether the roll-up doors, windows, or other seasonal or temporary enclosures are open or closed.

§ 32.1-373. Posting of signs; removal of ashtrays.

The proprietor of any restaurant, bar or lounge area shall:

1. Post signs stating "No Smoking" or containing the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a bar across it, clearly and conspicuously in every restaurant, bar or lounge area where smoking is prohibited by this chapter; and

2. Remove all ashtrays and other smoking paraphernalia from any area where smoking is prohibited by this chapter.

§ 32.1-374. Penalties.

A. No person shall smoke in any area in which smoking is prohibited pursuant to this chapter. Any person who continues to smoke in such area after having been asked to refrain from smoking shall be subject to a civil penalty of not more than $25.

B. Any proprietor of any restaurant, bar or lounge area who fails to comply with the requirements of this chapter shall be subject to a civil penalty of not more than $25.

C. It shall be an affirmative defense to a complaint brought against a proprietor for a violation of a provision of this chapter that a proprietor or an employee of such proprietor:

1. Posted a "No Smoking" sign as required by § 32.1-373;

2. Removed all ashtrays and other smoking paraphernalia from all areas where smoking is prohibited;

3. Refused to seat or serve any individual who was smoking in a prohibited area; and

4. If the individual continued to smoke after an initial warning, asked the individual to leave the establishment.

D. Civil penalties assessed under this section shall be paid into the Virginia Health Care Fund established under § 32.1-366.

§ 32.1-375. Authority of law-enforcement officials.

Any law-enforcement officer may issue a summons regarding a violation of this chapter.

§ 32.1-376. Retaliation prohibited.

No person, employer or proprietor shall, in any manner, retaliate against any other person, employee, applicant for employment, or customer for filing any complaint or report about or seeking prosecution of any violation of this chapter.

§ 32.1-377. Severability.

If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, the invalidity shall not affect the other provisions or applications that can be given effect without the invalid provision of application, and to this end the provisions of this chapter shall be severable.

SENATE BILL NO. 501 Offered January 9, 2008 Prefiled January 9, 2008 A BILL to amend and reenact § 18.2-511.1 of the Code of Virginia, to amend the Code of Virginia by adding in Title 32.1 a chapter numbered 16, consisting of articles numbered 1 through 3, containing sections numbered 32.1-370 through 32.1-383, and to repeal Chapter 28 (§ 15.2-2800 et seq.) of Title 15.2 of the Code of Virginia, relating to the Virginia Indoor Clean Air Act; penalty. ---------- Patrons-- Locke and Northam ---------- Referred to Committee on Education and Health ----------

Be it enacted by the General Assembly of Virginia:

1.  That § 18.2-511.1 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding in Title 32.1 a chapter numbered 16, consisting of articles numbered 1 through 3, containing sections numbered 32.1-370 through 32.1-383 as follows:

§ 18.2-511.1. Smoking in proximity to a medical oxygen source in a health care facility; penalty.

Any person who smokes or uses an open flame within 25 feet of a medical oxygen source in a health care facility, as defined in § 15.2-2800 32.1-370, when the area is posted as an area where smoking and open flame are prohibited is guilty of a Class 2 misdemeanor.

CHAPTER 16. VIRGINIA INDOOR CLEAN AIR ACT. Article 1. General Provisions.

§ 32.1-370. Definitions.

As used in this chapter unless the context requires a different meaning:

"Bar or lounge area" means any establishment or portion of an establishment where one can consume alcoholic beverages and hors d'oeuvres, but excluding any such establishment or portion of the establishment having tables or seating facilities where, in consideration of payment, meals are served.

"Educational facility" means any building used for instruction of enrolled students, including, but not limited to, any day-care center, nursery school, public or private school, college, university, medical school, law school, or career and technical education school.

“Food establishment” means any one of the following:

1. Any place where food is prepared for service to the public on or off the premises, or any place where food is served. Examples of such places include restaurants, dining accommodations of public or private clubs, kitchen facilities of hospitals and nursing homes, dining accommodations of public and private schools and colleges, and kitchen areas of local correctional facilities subject to standards adopted under § 53.1-68. “Food establishment” shall not include places manufacturing packaged or canned foods that are distributed to grocery stores or other similar food retailers for sale to the public; or

2. Any place or operation that prepares or stores food for distribution to persons of the same business operation or of a related business operation for service to the public.  Examples of such places or operations include the preparation or storage of food for catering services, pushcart operations, hotdog stands, and other mobile points of service. “Food establishment” shall not include mobile points of service to the general public that are outdoors or mobile points of service where such service and consumption occur in a private residence or in any location that is not a public place.

"Health care facility" means any institution, place, building, or agency required to be licensed under Virginia law, including, but not limited to, any hospital, nursing facility or nursing home, boarding home, assisted living facility, supervised living facility, or ambulatory medical and surgical center.

"Private work place" means any office or work area that is not open to the public in the normal course of business except by individual invitation.

"Proprietor" means the owner or lessee of the public place, who ultimately controls the activities within the public place. The term "proprietor" includes corporations, associations, or partnerships as well as individuals.

"Public conveyance" or "public vehicle" means any air, land, or water vehicle used for the mass transportation of persons in intrastate travel for compensation, including, but not limited to, any airplane, train, bus, or boat that is not subject to federal smoking regulations.

"Public place" means any enclosed, indoor area used by the general public, including, but not limited to, any building owned or leased by the Commonwealth or any agency thereof or any locality, public conveyance or public vehicle, restaurant, educational facility, hospital, nursing facility or nursing home, other health care facility, library, retail store of 15,000 square feet or more, auditorium, arena, theater, museum, concert hall, or other area used for a performance or an exhibit of the arts or sciences, or any meeting room.

"Recreational facility" means any enclosed, indoor area used by the general public and used as a stadium, arena, skating rink, video game facility, or senior citizen recreational facility.

"Restaurant" means any building, structure, or area, excluding a bar or lounge area, having seating capacity for patrons where food is available for eating on the premises, in consideration of payment.

"Smoke" or "smoking" means the carrying or holding of any lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment, or the lighting, inhaling, or exhaling of smoke from a pipe, cigar, or cigarette of any kind.

"Theater" means any indoor facility or auditorium, open to the public, that is primarily used or designed for the purpose of exhibiting any motion picture, stage production, musical recital, dance, lecture, or other similar performance.

§ 32.1-371. Applicability.

Nothing in this chapter shall be construed to

1. Permit smoking where it is otherwise prohibited or restricted by other applicable provisions of law; or

2. Regulate smoking in retail tobacco stores, tobacco warehouses or tobacco manufacturing facilities.

§ 32.1-372. Authority of law-enforcement officials.

Any law-enforcement officer may issue a summons regarding a violation of this chapter.

§ 32.1-373. Smoking in public buildings or facilities; exception.

A. The Commonwealth or any agency thereof and every locality shall provide reasonable no-smoking areas, considering the nature of the use and the size of the building, in any building owned or leased by the Commonwealth or any agency thereof or a locality.

B. The provisions of this chapter shall not apply to office, work or other areas of the Department of Corrections that are not entered by the general public in the normal course of business or use of the premises.

Article 2. Statewide Regulation of Smoking.

§ 32.1-374. Prohibitions on smoking generally; penalty for violation.

A. Smoking shall be prohibited in (i) elevators, regardless of capacity, except in any open material hoist elevator not intended for use by the general public; (ii) public school buses; (iii) the interior of any public elementary, intermediate, and secondary school; (iv) hospital emergency rooms; (v) local or district health departments; (vi) polling rooms; (vii) indoor service lines and cashier lines; (viii) public restrooms in any building owned or leased by the Commonwealth or any agency thereof; (ix) the interior of a child day center licensed pursuant to § 63.2-1701 that is not also used for residential purposes; however, this prohibition shall not apply to any area of a building not utilized by a child day center, unless otherwise prohibited by this chapter; and (x) public restrooms of health care facilities.

B. No person shall smoke in a designated no-smoking area and any person who continues to smoke in such area after having been asked to refrain from smoking may be subject to a civil penalty of not more than $25.

C. Civil penalties assessed under this section shall be paid into the Virginia Health Care Fund established under § 32.1-366.

§ 32.1-375. Smoking in food establishments prohibited; exceptions; penalty for violation.

A. In order to reduce the exposure to environmental tobacco smoke, smoking shall not be permitted and no person shall smoke in any (i) food establishment in the Commonwealth or (ii) bar or lounge area, including outdoor areas of such bar or lounge area that are enclosed by screened walls, roll-up doors or windows, or other seasonal or temporary enclosures, regardless of whether the roll-up doors, windows, or other seasonal or temporary enclosures are open or closed.

B. Nothing in this section shall be construed to prohibit smoking in any (i) outdoor areas of food establishments or (ii) bar or lounge areas, provided such areas are not enclosed by screened walls, roll-up doors, windows, or other seasonal or temporary enclosures.

C. No person shall smoke in any area in which smoking is prohibited pursuant to this section. Any person who continues to smoke in such area after having been asked to refrain from smoking shall be subject to a civil penalty of not more than $250. Any person who commits a second offense shall be subject to a civil penalty of not more than $500. Any subsequent offense shall be punishable as a Class 2 misdemeanor.

D. Any proprietor of any food establishment who fails to comply with the restrictions provided in this section shall be subject to a civil penalty of not more than $500 for the first offense and $1,000 for a second offense. Any subsequent offense shall be punishable as a Class 1 misdemeanor.

E. Civil penalties assessed under this section shall be paid into the Virginia Health Care Fund established under § 32.1-366.

§ 32.1-376. Designation of "No-Smoking" areas; smoking prohibited in "No-Smoking" areas; penalty for violation.

A. The proprietor or other person in charge of (i) an educational facility, except any public elementary, intermediate, or secondary school, or health care facility; or (ii) a retail establishment of 15,000 square feet or more serving the general public, including, but not limited to, department stores, grocery stores, drug stores, clothing stores, shoe stores, and recreational facilities, shall designate reasonable no-smoking areas, considering the nature of the use and the size of the building.

B. The proprietor or other person in charge of a space subject to the provisions of this section shall post signs conspicuous to public view stating "Smoking Permitted" or "No Smoking." Any person failing to post such signs may be subject to a civil penalty of not more than $25.

C. No person shall smoke in a designated no-smoking area and any person who continues to smoke in such area after having been asked to refrain from smoking may be subject to a civil penalty of not more than $25.

D. Civil penalties assessed under this section shall be paid into the Virginia Health Care Fund established under § 32.1-366.

§ 32.1-377. Responsibility of building proprietors and managers.

The proprietors or persons who manage or otherwise control any building, structure, space, place, or area governed by this chapter in which smoking is not otherwise prohibited may designate rooms or areas in which smoking is permitted as follows:

1. Designated smoking areas shall not encompass so much of the building, structure, space, place, or area open to the general public that reasonable no-smoking areas, considering the nature of the use and the size of the building, are not provided;

2. Designated smoking areas shall be separate to the extent reasonably practicable from those rooms or areas entered by the general public in the normal use of the particular business or institution; and

3. In designated smoking areas, ventilation systems and existing physical barriers shall be used when reasonably practicable to minimize the permeation of smoke into no-smoking areas. However, this chapter shall not be construed as requiring physical modifications or alterations to any structure.

Article 3. Local Regulation of Smoking.

§ 32.1-378. Ordinances regulating smoking.

A. No ordinances enacted by a locality prior to January 1, 1990, shall be deemed invalid or unenforceable because of lack of consistency with the provisions of this chapter.

B. Unless specifically permitted in this chapter, ordinances adopted after January 1, 1990, shall not contain provisions or standards that exceed those established in this chapter.

C. However, any ordinance may provide that employers may regulate smoking in the private work place as they deem appropriate under the following circumstances: (i) if the designation of smoking and no-smoking areas is the subject of a written agreement between the employer and his employees, the provisions of the written agreement shall control such designation and (ii) a total ban on smoking in any work place shall only be enforced by the employer upon an affirmative vote of a majority of the affected employees voting, unless such ban is the subject of a contract of employment between the employer and the employees as a prior condition of employment. No ordinance adopted pursuant to this subsection shall affect no-smoking policies established by employers prior to the adoption of such ordinance.

§ 32.1-379. Mandatory provisions of ordinances.

Any ordinance enacted by a locality shall provide that it is unlawful for any person to smoke in any of the places governed by § 32.1-374.

§ 32.1-380. Optional provisions of ordinances.

Any ordinance may provide that management shall designate reasonable no-smoking areas, considering the nature of the use and the size of the building, in the following places:

1. Retail and service establishments of 15,000 square feet or more serving the general public, including, but not limited to, department stores, grocery stores, drug stores, clothing stores, and shoe stores;

2. Rooms in which a public meeting or hearing is being held;

3. Places of entertainment and cultural facilities, including, but not limited to, theaters, concert halls, gymnasiums, auditoriums, other enclosed arenas, art galleries, libraries, and museums;

4. Indoor facilities used for recreational purposes; or

5. Other public places.

§ 32.1-381. Other ordinances not authorized.

The provisions of §§ 32.1-378 through 32.1-380 shall not be construed to authorize any locality to enact an ordinance regulating smoking in:

1. Bars and lounge areas, except as provided in subsection B of § 32.1-375;

2. Conference or meeting rooms, and public and private assembly rooms while such rooms are being used for private functions;

3. Private workplace;

4. Areas of enclosed shopping centers or malls that are external to the retail stores therein, are used by customers as a route of travel from one store to another, and consist primarily of walkways and seating arrangements; and

5. Lobby areas of hotels, motels, and other establishments open to the general public for overnight accommodation.

§ 32.1-382. Regulation of smoking; posting of signs.

Any person who owns, manages, or otherwise controls any building or area in which smoking is regulated by an ordinance shall post in an appropriate place, in a clear, conspicuous, and sufficient manner, "Smoking Permitted" signs, "No Smoking" signs, or "No-Smoking Section Available" signs.

§ 32.1-383. Enforcement of ordinances.

A. Any ordinance may provide a civil penalty of not more than $25 for violations of any provision of such ordinance.

B. Any ordinance may provide that no person shall smoke in a designated no-smoking area and any person who continues to smoke in such area after being asked to refrain from smoking may be subject to a civil penalty of not more than $25.

C. Any ordinance shall provide that any law-enforcement officer may issue a summons regarding a violation of the ordinance.

D. Any civil penalties assessed under this section shall be paid into the treasury of the locality where the offense occurred.

2.  That Chapter 28 (§ 15.2-2800 et seq.) of Title 15.2 of the Code of Virginia is repealed.