1.1                          A bill for an act 
  1.2             relating to health; establishing the Freedom to 
  1.3             Breathe Act of 2004; requiring persons to refrain from 
  1.4             smoking in certain areas; amending Minnesota Statutes 
  1.5             2002, sections 144.412; 144.413, subdivision 2, by 
  1.6             adding subdivisions; 144.414, as amended; 144.416; 
  1.7             144.4165; 144.417; proposing coding for new law in 
  1.8             Minnesota Statutes, chapter 144; repealing Minnesota 
  1.9             Statutes 2002, section 144.415. 
  1.10  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.11     Section 1.  Minnesota Statutes 2002, section 144.412, is 
  1.12  amended to read: 
  1.13     144.412 [PUBLIC POLICY.] 
  1.14     The purpose of sections 144.411 to 144.417 is to protect 
  1.15  the public health, comfort, and environment by prohibiting 
  1.16  smoking in areas where children or ill or injured persons are 
  1.17  present, and by limiting eliminating smoking in public places, 
  1.18  places of employment, public transportation, and at public 
  1.19  meetings to designated smoking areas. 
  1.20     Sec. 2.  Minnesota Statutes 2002, section 144.413, is 
  1.21  amended by adding a subdivision to read: 
  1.22     Subd. 1a.  [PLACE OF EMPLOYMENT.] "Place of employment" 
  1.23  means any indoor area at which two or more individuals perform 
  1.24  any type of a service for consideration of payment under any 
  1.25  type of employment relationship, including, but not limited to 
  1.26  an employment relationship with or for a private corporation, 
  1.27  partnership, individual, or government agency.  Place of 
  2.1   employment includes any location where two or more individuals 
  2.2   gratuitously perform services for which individuals are 
  2.3   ordinarily paid.  Examples of a place of employment include 
  2.4   public conveyances, factories, warehouses, offices, school 
  2.5   grounds, retail stores, banquet facilities, theaters, food 
  2.6   stores, banks, financial institutions, employee cafeterias, 
  2.7   lounges, auditoriums, gymnasiums, restrooms, elevators, 
  2.8   hallways, museums, libraries, bowling establishments, employee 
  2.9   medical facilities, rooms or areas containing photocopying 
  2.10  equipment or other office equipment used in common, company 
  2.11  vehicles, government-owned vehicles, or a similar place of 
  2.12  employment. 
  2.13     Sec. 3.  Minnesota Statutes 2002, section 144.413, 
  2.14  subdivision 2, is amended to read: 
  2.15     Subd. 2.  [PUBLIC PLACE.] "Public place" means any 
  2.16  enclosed, indoor area used by the general public or serving as a 
  2.17  place of work, including, but not limited to, restaurants,; 
  2.18  bars; outdoor seating at restaurants and bars; retail stores, 
  2.19  offices and other commercial establishments, public 
  2.20  conveyances,; educational facilities other than public schools, 
  2.21  as defined in section 120A.05, subdivisions 9, 11, and 13,; 
  2.22  hospitals,; nursing homes,; auditoriums,; arenas,; 
  2.23  meeting rooms, and; common areas of rental apartment buildings, 
  2.24  but excluding private, enclosed offices occupied exclusively by 
  2.25  smokers even though such offices may be visited by nonsmokers; 
  2.26  youth centers; and youth detention facilities. 
  2.27     Sec. 4.  Minnesota Statutes 2002, section 144.413, is 
  2.28  amended by adding a subdivision to read: 
  2.29     Subd. 5.  [PUBLIC TRANSPORTATION.] "Public transportation" 
  2.30  means public means of transportation, including light and 
  2.31  commuter rail transit; buses; enclosed bus and transit stops; 
  2.32  taxis, vans, limousines, and other for-hire vehicles; and 
  2.33  ticketing, boarding, and waiting areas in public transportation 
  2.34  terminals. 
  2.35     Sec. 5.  Minnesota Statutes 2002, section 144.414, as 
  2.36  amended by Laws 2003, First Special Session chapter 14, article 
  3.1   7, section 41, is amended to read: 
  3.2      144.414 [PROHIBITIONS AND EXCEPTIONS.] 
  3.3      Subdivision 1.  [PUBLIC PLACES, PLACES OF EMPLOYMENT, 
  3.4   PUBLIC TRANSPORTATION, AND PUBLIC MEETINGS.] Smoking shall not 
  3.5   be permitted in and no person shall smoke in a public place or, 
  3.6   at a public meeting except in designated smoking areas, in a 
  3.7   place of employment, or in public transportation, except as 
  3.8   provided in subdivision 4.  This prohibition does not apply in 
  3.9   cases in which an entire room or hall is used for a private 
  3.10  social function and seating arrangements are under the control 
  3.11  of the sponsor of the function and not of the proprietor or 
  3.12  person in charge of the place.  Furthermore, this prohibition 
  3.13  shall not apply to places of work not usually frequented by the 
  3.14  general public, except that the state commissioner of health 
  3.15  shall establish rules to restrict or prohibit smoking in 
  3.16  factories, warehouses, and those places of work where the close 
  3.17  proximity of workers or the inadequacy of ventilation causes 
  3.18  smoke pollution detrimental to the health and comfort of 
  3.19  nonsmoking employees.  Private social functions do not include 
  3.20  functions in which members of the public are generally eligible 
  3.21  to participate. 
  3.22     Subd. 2.  [DAY CARE PREMISES.] Smoking is prohibited in a 
  3.23  day care center licensed under Minnesota Rules, parts 9503.0005 
  3.24  to 9503.0175, or in a family home or in a group family day care 
  3.25  provider home licensed under Minnesota Rules, parts 9502.0300 to 
  3.26  9502.0445, during its hours of operation.  The proprietor of a 
  3.27  family home or group family day care provider must disclose to 
  3.28  parents or guardians of children cared for on the premises if 
  3.29  the proprietor permits smoking outside of its hours of 
  3.30  operation.  Disclosure must include posting on the premises a 
  3.31  conspicuous written notice and orally informing parents or 
  3.32  guardians. 
  3.33     Subd. 3.  [HEALTH CARE FACILITIES AND CLINICS.] (a) Smoking 
  3.34  is prohibited in any area of a hospital, health care clinic, 
  3.35  doctor's office, licensed residential facility for children, or 
  3.36  other health care-related facility, other than except that a 
  4.1   patient or resident in a nursing home, boarding care facility, 
  4.2   or licensed residential facility, except as allowed in this 
  4.3   subdivision.  
  4.4      (b) Smoking by participants in peer reviewed scientific 
  4.5   studies related to the health effects of smoking may be allowed 
  4.6   in a separated room ventilated at a rate of 60 cubic feet per 
  4.7   minute per person pursuant to a policy that is approved by the 
  4.8   commissioner and is established by the administrator of the 
  4.9   program to minimize exposure of nonsmokers to for adults may 
  4.10  smoke in a designated separate, enclosed room if the room has a 
  4.11  separate ventilation system from the rest of the facility. 
  4.12     Subd. 4.  [PUBLIC TRANSPORTATION VEHICLES.] Smoking is 
  4.13  prohibited in public transportation vehicles except that the 
  4.14  driver of a public transportation vehicle may smoke when the 
  4.15  vehicle is being used for personal use.  For purposes of this 
  4.16  subdivision, "personal use" means that the public transportation 
  4.17  vehicle is being used by the driver for private purposes and no 
  4.18  for-hire passengers are present.  If a driver smokes pursuant to 
  4.19  this subdivision, the driver must post a conspicuous sign inside 
  4.20  the vehicle to inform passengers. 
  4.21     Sec. 6.  Minnesota Statutes 2002, section 144.416, is 
  4.22  amended to read: 
  4.23     144.416 [RESPONSIBILITIES OF PROPRIETORS.] 
  4.24     The proprietor or other person in charge of a public place, 
  4.25  public transportation, place of employment, or public meeting 
  4.26  shall make reasonable efforts to prevent smoking in the public 
  4.27  place, public transportation, place of employment, or public 
  4.28  meeting by 
  4.29     (a) posting appropriate signs; 
  4.30     (b) arranging seating to provide a smoke-free area; 
  4.31     (c) asking smokers to refrain from smoking upon request of 
  4.32  a client or employee suffering discomfort from the smoke; or 
  4.33     (d) or by any other means which may be appropriate.  The 
  4.34  proprietor or other person in charge of a public place, public 
  4.35  meeting, public transportation, or place of employment must not 
  4.36  provide smoking equipment, including ashtrays or matches, in 
  5.1   areas where smoking is prohibited.  Nothing in this section 
  5.2   prohibits the proprietor or other person in charge from taking 
  5.3   more stringent measures than those under sections 144.414 to 
  5.4   144.417 to protect individuals from second-hand smoke. 
  5.5      Sec. 7.  Minnesota Statutes 2002, section 144.4165, is 
  5.6   amended to read: 
  5.7      144.4165 [TOBACCO PRODUCTS PROHIBITED IN PUBLIC SCHOOLS.] 
  5.8      (a) No person shall at any time smoke, chew, or otherwise 
  5.9   ingest tobacco or a tobacco product in a public or private 
  5.10  school, as defined in section 120A.05, subdivisions 9, 11, and 
  5.11  13, or on school grounds, except as provided in paragraph (b).  
  5.12  This prohibition extends to all facilities, whether owned, 
  5.13  rented, or leased, and all vehicles that a school district owns, 
  5.14  leases, rents, contracts for, or controls.  Nothing in this 
  5.15  section shall prohibit the lighting of tobacco by an adult as a 
  5.16  part of a traditional Indian spiritual or cultural ceremony.  
  5.17  For purposes of this section, an Indian is a person who is a 
  5.18  member of an Indian tribe as defined in section 260.755 
  5.19  subdivision 12.  This prohibition extends to all schools and 
  5.20  school grounds including public and private colleges, 
  5.21  universities, and other educational and vocational facilities.  
  5.22  For purposes of this section, "school grounds" means any 
  5.23  building or structure and surrounding outdoor grounds contained 
  5.24  within the legally defined property boundaries of a public or 
  5.25  private preschool, nursery school, elementary or secondary 
  5.26  school, or public or private college or university.  
  5.27     (b) Nothing in this section prohibits an adult from 
  5.28  consuming chewing tobacco products if permitted by a public or 
  5.29  private college or university. 
  5.30     Sec. 8.  [144.4167] [PERMITTED SMOKING.] 
  5.31     Subdivision 1.  [SCIENTIFIC STUDY PARTICIPANTS.] Smoking by 
  5.32  participants in peer reviewed scientific studies related to the 
  5.33  health effects of smoking may be allowed in a separated room 
  5.34  ventilated at a rate of 60 cubic feet per minute per person 
  5.35  pursuant to a policy that is approved by the commissioner and is 
  5.36  established by the administrator of the program to minimize 
  6.1   exposure of nonsmokers to smoke. 
  6.2      Subd. 2.  [TRADITIONAL NATIVE AMERICAN 
  6.3   CEREMONIES.] Sections 144.414 to 144.417 do not prohibit the 
  6.4   lighting of tobacco by an Indian adult as a part of a 
  6.5   traditional Indian spiritual or cultural ceremony.  For purposes 
  6.6   of this section, an Indian is a person who is a member of an 
  6.7   Indian tribe as defined in section 260.755, subdivision 12. 
  6.8      Subd. 3.  [PRIVATE PLACES.] Except as provided in section 
  6.9   144.414, subdivision 2, nothing in sections 144.411 to 144.417 
  6.10  prohibits smoking in: 
  6.11     (1) private homes, private residences, or private 
  6.12  automobiles; or 
  6.13     (2) a hotel or motel room rented to one or more guests. 
  6.14     Sec. 9.  Minnesota Statutes 2002, section 144.417, is 
  6.15  amended to read: 
  6.16     144.417 [COMMISSIONER OF HEALTH, ENFORCEMENT, PENALTIES.] 
  6.17     Subdivision 1.  [RULES.] (a) The state commissioner of 
  6.18  health shall adopt rules necessary and reasonable to implement 
  6.19  the provisions of sections 144.411 to 144.417, except as 
  6.20  provided for in section 144.414.  
  6.21     (b) Rules implementing sections 144.411 to 144.417 adopted 
  6.22  after January 1, 2002, may not take effect until approved by a 
  6.23  law enacted after January 1, 2002.  This paragraph does not 
  6.24  apply to a rule or severable portion of a rule governing smoking 
  6.25  in office buildings, factories, warehouses, or similar places of 
  6.26  work, or in health care facilities.  This paragraph does not 
  6.27  apply to a rule changing the definition of "restaurant" to make 
  6.28  it the same as the definition in section 157.15, subdivision 12. 
  6.29     Subd. 2.  [PENALTIES VIOLATIONS.] (a) It is unlawful for 
  6.30  any person, firm, limited liability company, corporation, or 
  6.31  other entity that owns, manages, operates, or otherwise controls 
  6.32  the use of an area in which smoking is prohibited under sections 
  6.33  144.414 to 144.417 to fail to comply with sections 144.414 to 
  6.34  144.417.  For violations of this subdivision, it is an 
  6.35  affirmative defense that during the relevant time period, actual 
  6.36  control of the area was not exercised by the respondent, but 
  7.1   rather by a lessee, a sublessee, or any other person.  To 
  7.2   establish an affirmative defense, the respondent shall submit an 
  7.3   affidavit and may submit any other relevant proof indicating 
  7.4   that the respondent did not exercise actual control of the area 
  7.5   during the relevant time period.  The affidavit and other proof 
  7.6   shall be mailed by certified mail to the appropriate enforcement 
  7.7   officer within 30 days of receipt of a notice of violation. 
  7.8      (b) It is unlawful for an employer whose place of 
  7.9   employment is subject to sections 144.414 to 144.417 to fail to 
  7.10  comply with sections 144.414 to 144.417.  For violations of 
  7.11  sections 144.414 to 144.417, it is an affirmative defense that 
  7.12  the employer has made good faith efforts to ensure that 
  7.13  employees comply with sections 144.414 to 144.417. 
  7.14     (c) It is unlawful for any person to smoke in an area where 
  7.15  smoking is prohibited or restricted under sections 144.414 to 
  7.16  144.417. 
  7.17     (d) Any person who violates section 144.414 or 
  7.18  144.4165 paragraph (c) is guilty of a petty misdemeanor. 
  7.19     (e) A proprietor or person in charge of a public place, 
  7.20  public meeting, place of employment, or public transportation 
  7.21  must not retaliate or take adverse action against an employee or 
  7.22  anyone else who, in good faith, reports a violation of sections 
  7.23  144.414 to 144.417 to the proprietor or person in charge of the 
  7.24  public place, public meeting, place of employment, or public 
  7.25  transportation or to the commissioner of health. 
  7.26     Subd. 3.  [INJUNCTION.] The state commissioner of health, a 
  7.27  board of health as defined in section 145A.02, subdivision 2, or 
  7.28  any affected party may institute an action in any court with 
  7.29  jurisdiction to enjoin repeated violations of section 144.416 or 
  7.30  144.4165 sections 144.414 to 144.417. 
  7.31     Sec. 10.  [LOCAL GOVERNMENT ORDINANCES.] 
  7.32     Nothing in Minnesota Statutes, sections 144.414 to 144.417, 
  7.33  prohibits a statutory or home rule charter city or county from 
  7.34  enacting and enforcing more stringent measures to protect 
  7.35  individuals from second-hand smoke. 
  7.36     Sec. 11.  [FREEDOM TO BREATHE ACT.] 
  8.1      The amendments in this act to Minnesota Statutes, sections 
  8.2   144.411 to 144.417, shall be referred to as the "Freedom to 
  8.3   Breathe Act of 2004." 
  8.4      Sec. 12.  [REPEALER.] 
  8.5      Minnesota Statutes 2002, section 144.415, is repealed.