05 SB90/CSFA/4
Senate
Bill 90
By:
Senators Thomas of the 54th, Reed of the 35th, Unterman of the 45th, Schaefer of
the 50th, Miles of the 43rd and others
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
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
Servicés
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,
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, homes for the 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. This definition shall not include long-term care facilities as
defined in paragraph (3) of Code Section 31-8-81.
(7)
'Local governing authority' means a county or municipal corporation of the
state.
(8)
'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. This term shall not include
vehicles used in the course of employment.
(9)
'Public place' means an enclosed area, or an outdoor area when specifically
included, 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.
(10)
'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.
(11)
'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.
(12)
'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.
(13)
'Shopping mall' means an enclosed public walkway or hall area that serves to
connect retail or professional establishments.
(14)
'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.
(15)
'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.
16-12-182.
All
enclosed facilities of, including buildings owned, leased, or operated by, the
State of Georgia, its agencies and authorities, and any political subdivision of
the state, including a county, municipal corporation, or local board or
authority created by general, local, or special Act of the General Assembly or
by ordinance or resolution of the governing body of a county or municipal
corporation individually or jointly with other political subdivisions of the
state, shall be subject to this article.
16-12-183.
Smoking
shall be prohibited in all 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, including patios;
(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, 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, including patios;
(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 in subsection (c) of this Code section, smoking shall be
prohibited in all enclosed areas 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, 2005, 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 five employees, except that smoking shall be prohibited in any public
reception area of such place of employment. This exemption shall not apply to
restaurants and bars.
16-12-185.
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)
Long-term care facilities as defined in paragraph (3) of Code Section
31-8-81;
(5)
Outdoor areas of places of employment except patios of bars and restaurants as
provided in Code Section 16-12-183;
(6)
Smoking areas in international airports, as such areas are designated by the
airport operator;
(7)
Corporate offices and manufacturing facilities of tobacco manufacturers;
and
(8)
Private and semiprivate rooms in health care facilities licensed under Title 31,
except as provided for under paragraph (4) of this Code section, that are
occupied by one or more persons, all of whom have written authorization by their
treating physician to smoke.
16-12-186.
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 16-12-187 is posted.
16-12-187.
(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)
Every public place and place of employment where smoking is prohibited by this
article shall have posted at every entrance a conspicuous sign clearly stating
that smoking is prohibited.
(c)
All ashtrays shall be removed from any area where smoking is prohibited by this
article by the owner, operator, manager, or other person in control of the area,
unless such ashtray is permanently affixed to an existing
structure.
16-12-188.
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.
16-12-189.
(a)
This article shall be enforced by the appropriate local agency or agencies
designated by each local governing authority in this state.
(b)
Each local governing authority in this state that issues occupation tax
certificates shall give notice of the provisions of this article to all
recipients of occupation tax certificates.
(c)
Any citizen who desires to register a complaint under this article may initiate
enforcement with the agency designated by a local governing authority for
enforcement.
(d)
The health department and fire department of any local governing authority
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 governing authority 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.
16-12-190.
(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)
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 after the second violation within one year.
(d)
Each day on which a violation of this article occurs shall be considered a
separate and distinct violation.
16-12-191.
The
Department of Human Resources and the agency designated by each local governing
authority in this state may 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.
16-12-192.
The
agency designated by each local governing authority in this state may 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.
16-12-193.
This
article shall not be construed to permit smoking where it is otherwise
restricted by other applicable laws.
16-12-194.
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 governing
authorities or local ordinances prohibiting smoking which are more restrictive
than this article or are not in direct conflict with this article.
16-12-195.
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.