MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Public Health and Human Services
By: Representative Mayo
AN ACT TO CREATE THE MISSISSIPPI SMOKE-FREE AIR ACT OF 2011; TO EXPRESS CERTAIN LEGISLATIVE FINDINGS REGARDING THE EFFECTS OF SECONDHAND SMOKE AND OTHER RISKS OF SMOKING; TO DEFINE CERTAIN TERMS; TO PROHIBIT SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT, IN CERTAIN NONENCLOSED AREAS, AND IN ALL PUBLIC TRANSPORATIONS STATIONS; TO AUTHORIZE PERSONS TO VOLUNTARILY DESIGNATE AREAS WITHIN THEIR CONTROL AS SMOKE-FREE PLACES; TO PRESCRIBE THE MINIMUM REQUIREMENTS FOR PERSONS IN CONTROL OF AREAS TO BE IN COMPLIANCE WITH THIS ACT; TO REQUIRE PERSONS IN CONTROL OF AREAS TO POST "NO SMOKING" SIGNS AT ALL ENTRANCES TO AREAS WHERE SMOKING IS PROHIBITED BY THIS ACT; TO AUTHORIZE THE STATE BOARD OF HEALTH TO PROMULGATE RULES AND REGULATIONS SPECIFYING SMOKING IN OUTDOOR COMMON AREAS OF ANY FACILITY OR ENTITY REQUIRED TO BE LICENSED OR PERMITTED BY THE STATE DEPARTMENT OF HEALTH; TO PROVIDE FOR CERTAIN EXEMPTIONS FROM THE PROHIBITIONS ON SMOKING IN THIS ACT; TO PROVIDE FOR ENFORCEMENT OF THIS ACT BY LOCAL LAW ENFORCEMENT OFFICERS AND AGENTS OF GOVERNMENTAL REGULATORY AGENCIES WHEN UNDERGOING AUTHORIZED INSPECTIONS; TO AUTHORIZE CERTAIN OFFICIALS AND OTHER PERSONS TO APPLY FOR INJUNCTIVE RELIEF IN COURT TO ENFORCE THE PROVISIONS OF THIS ACT; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; TO PRESCRIBE THE DUTIES OF THE STATE DEPARTMENT OF HEALTH REGARDING THIS ACT; TO ALLOW POLITICAL SUBDIVISIONS TO ADOPT LOCAL ORDINANCES RELATING TO SMOKING THAT ARE MORE RESTRICTIVE THAN THIS ACT; TO REPEAL SECTIONS 29-5-160 THROUGH 29-5-163, MISSISSIPPI CODE OF 1972, WHICH ARE THE MISSISSIPPI CLEAN INDOOR AIR ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known as the Mississippi Smoke-free Air Act of 2011.
SECTION 2. (1) The Legislature finds that:
(a) The 2010 United States Surgeon General's Report, How Tobacco Smoke Causes Disease concluded:
(i) Low levels of secondhand-smoke exposure lead to a rapid and sharp increase in dysfunction and inflammation of the lining of the blood vessels, which are implicated in heart attacks and stroke;
(ii) When inhaling secondhand cigarette smoke, individuals breathe in more than seven thousand (7,000) chemicals, hundreds of which are hazardous and known to cause cancer. These chemicals are rapidly absorbed by cells in the body and produce disease-causing cellular change; and
(iii) There is no safe level of exposure to secondhand-smoke.
(b) The 2006 United States Surgeon General's Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, concluded:
(i) Secondhand-smoke exposure causes disease and premature death in children and adults who do not smoke;
(ii) Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory problems, ear infections, and asthma attacks;
(iii) Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer;
(iv) Establishing smoke-free air workplaces fully protects employees and the public from exposure to secondhand smoke in those places. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposure to secondhand smoke;
(v) Evidence from peer-reviewed studies shows that smoke-free policies and laws do not have an adverse economic impact on the hospitality industry.
(c) The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of approximately fifty-three thousand (53,000) Americans annually.
(d) Secondhand smoke has been designated as a "known human carcinogen" (cancer-causing agent) by the United States Environmental Protection Agency, National Toxicology Program and the International Agency for Research on Cancer (IARC). The National Institute for Occupational Safety and Health has concluded that secondhand smoke is an occupational carcinogen.
(e) The Institute of Medicine's report, Secondhand Smoke Exposure and Cardiovascular Effects: Making Sense of the Evidence concludes: there is scientific consensus that there is a causal relationship between secondhand-smoke exposure and cardiovascular disease. The results of a number of meta-analyses of the epidemiologic studies showed increases of twenty-five percent (25%) to thirty percent (30%) in the risk of cardiovascular disease caused by various exposures. Studies of hospital admissions for acute myocardial infarction in many states and municipalities have determined that communities see an immediate reduction in heart attack admissions after the implementation of comprehensive smoke-free laws, including Starkville, Mississippi, (twenty-seven and seven-tenths percent (27.7%) reduction, resulting in a cost savings of Two Hundred Eighty-eight Thousand Two Hundred Seventy Dollars ($288,270.00)) and Hattiesburg, Mississippi, (thirteen and four-tenths percent (13.4%) reduction, resulting in a cost savings of Two Million Three Hundred Sixty-seven Thousand Nine Hundred Nine Dollars ($2,367,909.00)).
(f) The Society of Actuaries has determined that secondhand-smoke costs the United States economy roughly Ten Billion Dollars ($10,000,000,000.00) a year: Five Billion Dollars ($5,000,000,000.00) in estimated medical costs associated with secondhand-smoke exposure and Four Billion Six Hundred Million Dollars ($4,600,000,000.00) in lost productivity.
(g) Business owners have no legal or constitutional right to expose their employees to the toxic chemicals and carcinogens in secondhand smoke. On the contrary, employers have a common law duty to provide their workers with a workplace that is not unreasonably dangerous.
(2) Accordingly, the Legislature declares that the intent of this act is:
(a) To protect the public health and welfare of all citizens, including workers in their places of employment, by prohibiting exposure to secondhand smoke in public places and places of employment; and
(b) To recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
SECTION 3. The following words and phrases, whenever used in this act, shall be construed as defined in this section:
(a) "Public place" means any area used by, and open to the public; to which the public is invited; or in which the public is permitted.
(b) "Business" means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit.
(c) "Employer" means a person, business, partnership, association, and corporation, including a municipal corporation, trust, or nonprofit entity that employs the services of one or more individual persons.
(d) "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 an employer.
(e) "Place of employment" means an area under the control of a public or private employer that employees access during the course of employment, including, but not limited to, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles.
(f) "Enclosed area" means all space between a floor and ceiling that is enclosed on at least two (2) sides by permanent or temporary walls or windows (exclusive of doorways), which extend from the floor to the ceiling.
(g) "Private club" means an organization, whether incorporated or not, that is the owner, lessee or occupant of a building or portion thereof used exclusively for club purposes at all times, that is operated solely for a recreational, fraternal, social, patriotic, political, benevolent or athletic purpose, but not for pecuniary gain, and that only sells alcoholic beverages incidental to its operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as an exempt organization under 26 USCS Section 501. A private club is a "public place" when it is being used for a function to which the general public is invited.
(h) "Person in control" means any owner, operator, manager, or other employee of a public place, business, place of employment, and/or enclosed area that is considered to be serving as the person in charge of the daily operations of said public place, business, place of employment, and/or enclosed area.
(i) "Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any lighted or heated tobacco product meant for inhalation, in any manner or in any form.
SECTION 4. All facilities, including buildings and vehicles owned, leased, or operated by the State of Mississippi or any agency, department, institution or political subdivision of the state, shall be subject to the provisions of this act.
SECTION 5. (1) Smoking shall be prohibited in the following enclosed areas within the State of Mississippi:
(a) Public places; and
(b) Places of employment.
(2) Subject to the provisions of Section 10 of this act, smoking shall be prohibited in the following nonenclosed areas:
(a) Within twenty (20) feet outside entrances, operable windows, and ventilation systems of any enclosed public place or place of employment within the State of Mississippi, so as to ensure that secondhand smoke does not enter the area comprising the public place or place of employment to ensure that employees can work and the public can enter without undue exposure to secondhand smoke.
(b) In public places including, but not limited to, arenas, stadiums, amphitheaters, amusement parks, zoos, playgrounds, recreational parks, and other similar venues when open to the public, except in designated smoking areas, which may be established only in perimeter areas at least twenty (20) feet from any entrance, seating area, bleachers, grandstand, concession stand, or areas specifically designed or landscaped for play or sports activities.
(3) Smoking shall be prohibited in all public transportation stations, platforms, and shelters operating under the authority of the state or any agency, department, institution or political subdivision of the state.
SECTION 6. (1) Notwithstanding any other provision of this act, a person in control may designate any area under his or her control that does not fall under the requirements of this act as a smoke-free place.
(2) In addition to the prohibition in this act, smoking shall be prohibited in any area designated by a person in control as a smoke free place when a "No Smoking" sign 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) sign is posted under the provisions of Section 8(1)(a) of this act.
(3) With respect to any area designated as smoke free under this section, the remedies for violators as set forth in this act shall be applied as if the designated area were subject to the mandatory requirements of Section 5 of this act.
SECTION 7. A person in control of any area where smoking is prohibited as described in Sections 5 and 6 of this act shall communicate those restrictions to all employees and to those affected within those areas on and after July 1, 2011.
SECTION 8. (1) This section establishes the "minimum requirements" of persons in control for purposes of compliance with this act.
(a) All persons in control shall make sure that "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) are clearly and conspicuously posted at all entrances to an area where smoking is prohibited by this act, and on the exterior of every vehicle that constitutes a place of employment under this act.
(b) All persons in control shall remove all ashtrays from any area where smoking is prohibited by this act.
(c) All persons in control of a place where smoking is prohibited by this act shall request all individuals violating this act to cease smoking.
(2) All persons in control where smoking is prohibited by this act shall refuse services or ask a violator of this act to leave the premises without recourse, and shall seek assistance of law enforcement for removal of noncompliant individuals.
(3) No person in control where smoking is prohibited by this act shall be subject to any fines or civil actions if those persons conform to the minimum requirements established in this section.
SECTION 9. (1) The State Board of Health is authorized to promulgate rules and regulations specifying smoking in outdoor common areas of any health facility, business or other entity that is required by law to obtain from the State Department of Health a permit, certificate, or license to conduct its activities.
(2) The Mississippi Department of Human Services is authorized to promulgate rules and regulations to limit the exposure to secondhand smoke of children in Mississippi foster care, while in the home of their foster care provider.
SECTION 10. Unless otherwise designated in a manner described in Section 6 of this act, the following areas shall be exempt from the mandatory provisions of Section 5 of this act:
(a) Private residences, except when the residence is used in a capacity that requires licensure under the regulations of the State Department of Health, or during the hours of operation as a business when employees of the business who are not the residents of the private residence or are not related to the owner are present.
(b) Private clubs that have no employees, except when being used as a public place, provided that smoke from those clubs does not infiltrate into areas where smoking is prohibited under the provisions of this act. This exemption shall not apply to any organization that is established for the purpose of avoiding compliance with this act.
(c) Areas used for smoking when that smoking is associated with a religious ceremony practiced under the American Indian Religious Freedom Act of 1978.
SECTION 11. (1) This act, when applicable, shall be enforceable by local law enforcement officers.
(2) Any person who desires to register a complaint under this act may initiate action with local law enforcement or through the toll-free hotline established in Section 13(2) of this act.
(3) Any agents of the State Department of Health, the State Fire Marshal's office, local fire departments, or other regulatory agencies or entities recognized by the state or federal government, while an establishment is undergoing otherwise authorized inspections, shall inspect for compliance with this act.
(4) Any state agency or local governmental authority having jurisdiction with respect to a public place or place of employment shall be authorized to promulgate rules and regulations for the enforcement of the provisions of this act by the imposition of fines and penalties, subject to administrative procedures reasonably made available in connection with the challenge or appeal of the fine or penalty.
(5) In addition to the remedies provided by the provisions of this section, the following may apply for injunctive relief to enforce the provisions of this act in any court of competent jurisdiction: local health authorities; municipal mayors, councils/board of aldermen, or attorneys; county attorneys, boards of supervisors or sheriffs; and any persons aggrieved by the failure of the owner, operator, manager or other person in control of a public place or a place of employment to comply with this act.
SECTION 12. (1) A person who smokes in an area where smoking is prohibited by the provisions of this act is guilty of a misdemeanor, punishable by a fine not exceeding Fifty Dollars ($50.00).
(2) Unless a person in control establishes that the minimum requirements set forth in Section 8(1) were met at the time of the alleged violation, a person in control of a place where smoking is prohibited by this act and who fails to comply with the provisions of this act is guilty of a misdemeanor, punishable by:
(a) A fine not exceeding One Hundred Dollars ($100.00) for a first violation.
(b) A fine not exceeding Two Hundred Dollars ($200.00) for a second violation within one (1) year.
(c) A fine not exceeding Five Hundred Dollars ($500.00) for each additional violation within one (1) year.
(3) In addition to the fines established by this section, violation of this act by a person that 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 by the State of Mississippi for the premises on which the violation occurred.
(4) Violation of this act is declared to be a public nuisance, which may be abated by restraining order, preliminary and permanent injunction, or other means provided for by law. An offense constituting a willful violation of this act may be prosecuted under Section 97-35-5.
(5) Each day on which a violation of this act occurs shall be considered a separate and distinct violation.
SECTION 13. The State Department of Health shall have the following duties:
(a) The Office of Tobacco Control of the State Department of Health shall engage in a continuing program to explain and clarify the purposes and requirements of this act to persons affected by it, and to guide persons in control in their compliance with it. The program may include publication of a brochure explaining the provisions of this act.
(b) The Office of Tobacco Control shall maintain a toll-free line for any person wishing to report a violation of this act, and shall notify the proper regulatory or governing agency having possible jurisdiction with respect to the violation.
(c) The Office of Tobacco Control shall provide free of charge to a person in control, upon the request of the person of control, a sign of the department's choice that conforms to the requirements of this act.
(d) The State Department of Health shall be solely responsible for the issuance of any declaratory opinion described in Section 25-43-2.103 regarding interpretations of this act, and shall be authorized to request the assistance of the Attorney General and other state agencies in connection with the preparation of a declaratory opinion.
SECTION 14. Nothing in this act shall be construed to prevent a political subdivision of the state from adopting local ordinances or regulations relating to smoking or other use of tobacco products in public places and places of employment that are more restrictive than this act, nor does this act repeal any existing local ordinances or regulations that provide restrictions on smoking that are equivalent to or greater than those provided by this act.
SECTION 15. This act shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable federal, tribal, state or local laws, or regulations or other applicable rules.
SECTION 16. This act shall be liberally construed so as to further its purposes.
SECTION 17. This act shall not be construed as amending or repealing Sections 41-114-1, 97-32-29 or 97-35-1(4).
SECTION 18. Sections 29-5-160, 29-5-161 and 29-5-163, Mississippi Code of 1972, which are the Mississippi Clean Indoor Air Act, are repealed.
SECTION 19. This act shall take effect and be in force from and after July 1, 2011.