Bill Text: IN SB0233 | 2010 | Regular Session | Introduced
Bill Title: Smoking ban in public places.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-01-11 - First reading: referred to Committee on Commerce and Public Policy & Interstate Cooperation [SB0233 Detail]
Download: Indiana-2010-SB0233-Introduced.html
Citations Affected: IC 12-7-2-178.8; IC 12-24-2-8; IC 16-18-2;
IC 16-41-37; IC 16-41-37.1.
Synopsis: Smoking ban in public places. Prohibits smoking in public
places and places of employment. Provides exceptions to the smoking
prohibitions. Allows a person who owns or controls an establishment,
facility, or outdoor area that does not qualify as a public place or place
of employment to declare the area a nonsmoking place. Requires the
posting of "no smoking" signs in and the removal of ashtrays from a
public place or place of employment. Prohibits firing or refusing to hire
a person for reporting a violation or exercising an obligation under the
smoking ban law. Prohibits smoking on school buses. Requires the
department of health (department) or the department's designee to
enforce the smoking prohibitions. Requires the department to establish
a schedule of civil penalties. Establishes the public smoking
enforcement fund. Provides procedures for administering civil penalties
for violations. Establishes duties for the department. Provides
procedures for administering civil penalties for violations. Allows local
governments to adopt more restrictive nonsmoking ordinances. Repeals
the current clean indoor air law and related definitions. Makes
conforming changes.
Effective: July 1, 2010.
January 11, 2010, read first time and referred to Committee on Commerce, Public Policy
& Interstate Cooperation.
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A BILL FOR AN ACT to amend the Indiana Code concerning
health.
(b) A physician licensed under IC 25-22.5 may prescribe nicotine as is medically necessary for a resident of a state institution.
(b) "Agency", for purposes of IC 16-40-5, has the meaning set forth in IC 16-40-5-1.
(c) "Agency", for purposes of
(1) For purposes of IC 16-41-11, has the meaning set forth in IC 16-41-11-1.
(2) For purposes of IC 16-41-37.1, has the meaning set forth in IC 16-41-37.1-4.
(b) "Provider", for purposes of IC 16-38-5, IC 16-39 (except for IC 16-39-7) and IC 16-41-1 through IC 16-41-9,
(1) An individual (other than an individual who is an employee or a contractor of a hospital, a facility, or an agency described in subdivision (2) or (3)) who is licensed, registered, or certified as
a health care professional, including the following:
(A) A physician.
(B) A psychotherapist.
(C) A dentist.
(D) A registered nurse.
(E) A licensed practical nurse.
(F) An optometrist.
(G) A podiatrist.
(H) A chiropractor.
(I) A physical therapist.
(J) A psychologist.
(K) An audiologist.
(L) A speech-language pathologist.
(M) A dietitian.
(N) An occupational therapist.
(O) A respiratory therapist.
(P) A pharmacist.
(Q) A sexual assault nurse examiner.
(2) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or
described in IC 12-24-1 or IC 12-29.
(3) A health facility licensed under IC 16-28-2.
(4) A home health agency licensed under IC 16-27-1.
(5) An employer of a certified emergency medical technician, a
certified emergency medical technician-basic advanced, a
certified emergency medical technician-intermediate, or a
certified paramedic.
(6) The state department or a local health department or an
employee, agent, designee, or contractor of the state department
or local health department.
(c) "Provider", for purposes of IC 16-39-7-1, has the meaning set
forth in IC 16-39-7-1(a).
IC 16-41-37-3. IC 16-41-37.1-11.
Chapter 37.1. Restrictions on Public Smoking
Sec. 1. Except as provided in sections 13, 20, and 21 of this chapter, this chapter does not apply to the following:
(1) Private residences, except during the hours of operation as:
(A) a child care home licensed under IC 12-17.2-5 or an adult care home; or
(B) a business:
(i) owned or operated by a person other than a person residing in the private residence; or
(ii) when employees of the business who are not residents of the private residence or are not related to the owner are present.
(2) Rooms for sleeping in hotels, motels, and other lodging facilities designated as smoking rooms. However, not more than twenty percent (20%) of the sleeping rooms in a hotel, motel, or other lodging facility may be designated as smoking rooms.
(3) Family owned and operated places of employment in which all employees are related to the owner, but only if:
(A) the enclosed areas of the place of employment are not open to the public and are in a freestanding structure occupied solely by the place of employment; and
(B) smoke from the place of employment does not migrate into an enclosed area where smoking is prohibited under this chapter.
(4) A retail tobacco establishment, subject to the following:
(A) To be exempt from this chapter, except as provided in section 13 of this chapter, a retail tobacco establishment in operation before July 1, 2010, must annually file with the state department by January 31 an affidavit stating the percentage of the establishment's gross income of the prior calendar year that was derived from the sale of cigars, cigarettes, pipes, or other smoking devices for smoking tobacco and related smoking accessories.
(B) To be exempt from this chapter, except as provided in section 13 of this chapter, a retail tobacco establishment that begins operation after June 30, 2010, or an existing
retail tobacco establishment that relocates to another
location after June 30, 2010, must be located in a
freestanding structure occupied solely by the business, and
smoke from the business must not migrate into an enclosed
area where smoking is prohibited under this chapter.
(5) An outdoor patio that is physically separated from an
enclosed area. If windows or doors form any part of the
partition between an enclosed area and the outdoor patio, the
openings must be closed to prevent the migration of smoke
into the enclosed area. If windows or doors do not prevent the
migration of smoke into the enclosed area, the outdoor patio
is considered an extension of the enclosed area and subject to
this chapter.
(6) A club if:
(A) the club meets the requirements:
(i) set forth in IC 7.1-3-20-1 for a club; or
(ii) set forth in IC 7.1-3-20-7 for a fraternal club;
(B) the club is exempt from federal income taxation under
Section 501(c) of the Internal Revenue Code;
(C) the club does not have employees;
(D) the club is located in a freestanding structure occupied
solely by the club;
(E) individuals who are not members of the club are not
present in the club's building;
(F) individuals who are less than eighteen (18) years of age
are not present in the club's building;
(G) smoke from the club does not migrate into an enclosed
area where smoking is prohibited under this chapter; and
(H) the club holds a retailer's permit issued under IC 7.1
if alcohol is served in the club.
Sec. 2. As used in this chapter, "agency" means a board, a
commission, a department, an agency, an authority, or another
entity exercising a part of the executive, administrative, legislative,
or judicial power of the state or local government.
Sec. 3. As used in this chapter, "employee" means a person who:
(1) is employed by an employer;
(2) contracts with an employer or another person to perform
services for an employer; or
(3) performs services for an employer with or without
compensation.
Sec. 4. As used in this chapter, "employer" means an agency, an
individual, a business, an association, or another public or private
entity, including a nonprofit entity, that:
(1) employs or contracts for; or
(2) accepts;
services provided from an employee.
Sec. 5. As used in this chapter, "enclosed area" means an area
with:
(1) a roof or overhead covering of any kind; and
(2) walls or side coverings of any kind, regardless of the
presence of entrances and exits, on all sides or on all sides but
one (1).
Sec. 6. As used in this chapter, "outdoor patio" means an area
that:
(1) is enclosed by a roof or overhead covering and walls or
side coverings on not more than two (2) sides; or
(2) does not have a roof or other overhead covering.
Sec. 7. (a) As used in this chapter, "place of employment" means
an enclosed area that is under the direct or indirect control of an
employer and that is used by the employer's employees for work or
any other purpose, including offices, meeting rooms, sales,
production and storage areas, restrooms, stairways, hallways,
warehouses, garages, and vehicles.
(b) An enclosed area described in this section is a place of
employment without regard to the time of day or the presence of
employees.
Sec. 8. As used in this chapter, "proprietor" means an employer,
an owner, a manager, an operator, a retail permit holder, or a
person in charge or control of a public place or place of
employment.
Sec. 9. As used in this chapter, "public place" means an enclosed
area where the public is invited or permitted.
Sec. 10. (a) As used in this chapter, "retail tobacco
establishment" means a retail establishment that:
(1) does not allow an individual who is less than eighteen (18)
years of age to enter the retail establishment; and
(2) derives more than eighty percent (80%) of its gross
revenue from the sale of cigars, cigarettes, pipes, or other
smoking devices for burning tobacco and related smoking
accessories and in which the sale of other products is merely
incidental.
(b) The term does not include a tobacco department or section
of a larger commercial establishment, including an establishment
with a liquor permit or containing a restaurant.
Sec. 11. As used in this chapter, "smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking equipment.
Sec. 12. (a) A proprietor of a public place or place of employment may not permit smoking in the:
(1) public place or place of employment; or
(2) areas directly or indirectly under the control of the proprietor immediately adjacent to entrances and exits to the public place or place of employment.
(b) A proprietor of a public place or place of employment shall ensure that smoke does not enter an area in which smoking is prohibited under this chapter, including entry through entrances, windows, and ventilation systems.
(c) A person shall immediately discontinue smoking in a public place, a place of employment, or an establishment, facility, or outdoor area declared to be a nonsmoking place under section 13 of this chapter when requested to do so by the proprietor or an employee of the public place, place of employment, establishment, facility, or outdoor area.
Sec. 13. (a) The owner, manager, operator, or other person in charge or control of an establishment, facility, or outdoor area that does not qualify as a public place or place of employment may declare the establishment, facility, or outdoor area as a nonsmoking place.
(b) Smoking is prohibited in any place declared to be a nonsmoking place under this section if a sign conforming to the requirements of section 14 of this chapter is posted in the place.
Sec. 14. The proprietor of a public place or place of employment shall do the following:
(1) Post signs that:
(A) state "No Smoking" or display 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;
(B) are conspicuously posted in every public place and place of employment where smoking is prohibited by this chapter, including at each entrance to the public place or place of employment;
(C) are of sufficient size to be clearly legible to a person of normal vision throughout the areas that the signs are intended to mark; and
(D) contain a telephone number for the reporting of
violations.
(2) Remove all ashtrays and other receptacles used for
disposing of smoking materials from an area where smoking
is prohibited by this chapter.
Sec. 15. A person, a proprietor, or an employer may not
discharge, refuse to hire, or in any manner retaliate against an
individual for reporting a violation or exercising any right or
obligation under this chapter.
Sec. 16. (a) As used in this section, "school bus" means a motor
vehicle that is:
(1) designed and constructed to accommodate at least ten (10)
passengers;
(2) owned or operated by a public or governmental agency, or
privately owned and operated for compensation; and
(3) used for the transportation of school children to and from
the following:
(A) School.
(B) School athletic games or contests.
(C) Other school functions.
(b) As used in this section, "school week" means a normal
Monday through Friday week that contains three (3) or more days
that each contain more than four (4) hours of classroom
instruction.
(c) A person may not smoke in a school bus during a school
week or while the school bus is being used for a purpose described
in subsection (a)(3).
(d) A school bus may not be used to transport an individual who
is less than eighteen (18) years of age if smoking has been allowed
on the bus during the previous twenty-four (24) hours, unless the
school bus has been vented according to procedures adopted by the
state department.
Sec. 17. (a) The state department and the state department's
designees shall enforce this chapter.
(b) The state department shall do the following:
(1) Adopt rules under IC 4-22-2 to implement and enforce this
chapter.
(2) Adopt rules under IC 4-22-2 to establish a schedule of civil
penalties for violations of this chapter. The schedule must
meet the following requirements:
(A) The penalty schedule must be designed to encourage
compliance with this chapter.
(B) The civil penalty for a violation of section 12(a) or
12(b) of this chapter may not be less than one hundred
dollars ($100) and not more than two thousand five
hundred dollars ($2,500).
(C) The amount of a penalty for a violation of section 12(c)
may not exceed one hundred dollars ($100) per violation.
(D) Each day of a violation constitutes a separate violation.
(E) The schedule of penalties that apply to a proprietor
must be progressive, based on the number of prior
violations by the proprietor.
(F) A violation that occurred more than two (2) years
before a subsequent violation may not be considered in
imposing a civil penalty for the subsequent violation if
there has not been a finding of a violation in the
intervening period.
(G) The civil penalty schedule must establish specific
factors that may be considered as a basis on which to
decrease or waive the amount of a penalty that would
otherwise apply.
(H) Civil penalties must be doubled for intentional
violations.
(3) Adopt rules under IC 4-22-2 to establish procedures for
the following:
(A) Providing a proprietor or an individual written notice
of a reported violation and the opportunity to present in
writing any statement or evidence to contest the report.
(B) Making findings concerning whether a proprietor or
an individual has violated this chapter.
(C) Imposing civil penalties for violations.
(4) Establish a system for receiving reports of violations of
this chapter from any person, including by mail, electronic
mail, and a toll free telephone number exclusively for the
purpose of receiving reports. A person may not be required to
disclose the person's identity to report a violation.
(5) Inform proprietors of public places and places of
employment of the requirements of this chapter and how to
comply with this chapter, including by providing printed and
other materials, a toll free telephone number, and electronic
mail address exclusively to provide information.
(6) Design and implement a program to educate the public
regarding this chapter, including the establishment of an
Internet web site and information on how to report a
violation.
Sec. 18. (a) The public smoking enforcement fund is established
to assist the state department with enforcing this chapter. The fund
shall be administered by the state department.
(b) The fund consists of grants, appropriations, and civil
penalties collected under this chapter.
(c) The expenses of administering the fund shall be paid from
money in the fund.
(d) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested.
(e) Money in the fund at the end of a state fiscal year does not
revert to the state general fund.
Sec. 19. (a) The state department or the state department's
designee shall investigate a report that a proprietor of a public
place or place of employment or an individual has violated this
chapter.
(b) If the state department or the state department's designee
investigates and finds that the proprietor or individual violated this
chapter, the state department shall do the following:
(1) For the first violation, issue a warning letter to the
proprietor or individual.
(2) For a second or subsequent violation, impose a civil
penalty on the proprietor or individual according to the
schedule adopted under section 17(b)(2) of this chapter.
(c) A proprietor or an individual against whom a finding of a
violation is made under this chapter may appeal the finding in a
circuit or superior court in the county where the violation allegedly
took place.
(d) The state department may institute an action in a circuit or
superior court to seek an injunction against a proprietor or an
individual who repeatedly violates this chapter.
Sec. 20. Notwithstanding IC 16-41-39, this chapter does not
prohibit a county, city, town, or other governmental unit from
adopting an ordinance more restrictive than this chapter.
Sec. 21. (a) This chapter shall be liberally construed to
accomplish the purpose of protecting public health and the health
of employees.
(b) This chapter may not be construed to permit smoking where
it is restricted by any other law or ordinance.
SECTION 15. THE FOLLOWING ARE REPEALED [EFFECTIVE
JULY 1, 2010]: IC 16-18-2-323.1; IC 16-18-2-323.4; IC 16-41-37.
