HF 412

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to health; establishing the Freedom to
Breathe Act of 2005; requiring persons to refrain from
smoking in certain areas; amending Minnesota Statutes
2004, sections 144.412; 144.413, subdivisions 2, 4, by
adding subdivisions; 144.414; 144.416; 144.417;
proposing coding for new law in Minnesota Statutes,
chapter 144; repealing Minnesota Statutes 2004,
section 144.415.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 144.412, is
amended to read:

144.412 PUBLIC POLICY.

The purpose of sections 144.411 to 144.417 is to protect
deleted text begin the public health, comfort and environment by prohibiting
smoking in areas where children or ill or injured persons are
present, and deleted text end new text begin employees and the general public from the known
hazards of second-hand smoke new text end by deleted text begin limiting deleted text end new text begin eliminating new text end smoking in
public places new text begin , places of employment, public transportation, new text end and
at public meetings deleted text begin to designated smoking areas deleted text end .

Sec. 2.

Minnesota Statutes 2004, section 144.413, is
amended by adding a subdivision to read:

new text begin Subd. 1a. new text end

new text begin Place of employment. new text end

new text begin "Place of employment"
means any indoor area at which two or more individuals perform
any type of a service for consideration of payment under any
type of employment relationship, including, but not limited to,
an employment relationship with or for a private corporation,
partnership, individual, or government agency. Place of
employment includes any location where two or more individuals
gratuitously perform services for which individuals are
ordinarily paid. Examples of a place of employment include
public conveyances, factories, warehouses, offices, retail
stores, restaurants, bars, banquet facilities, theaters, food
stores, banks, financial institutions, employee cafeterias,
lounges, auditoriums, gymnasiums, restrooms, elevators,
hallways, museums, libraries, bowling establishments, employee
medical facilities, rooms or areas containing photocopying
equipment or other office equipment used in common, vehicles
owned or leased by a company if a nonsmoking employee is
present, government-owned vehicles, or a similar place of
employment.
new text end

Sec. 3.

Minnesota Statutes 2004, section 144.413,
subdivision 2, is amended to read:

Subd. 2.

Public place.

"Public place" means any
enclosed, indoor area used by the general public deleted text begin or serving as a
place of work, deleted text end including, but not limited to, restaurants deleted text begin , deleted text end new text begin ;
bars; outdoor seating at restaurants and bars; new text end retail stores deleted text begin ,
offices deleted text end and other commercial establishments deleted text begin , public
conveyances, deleted text end new text begin ; new text end educational facilities other than public schools,
as defined in section 120A.05, subdivisions 9, 11, and 13 deleted text begin , deleted text end new text begin ;
new text end hospitals deleted text begin , deleted text end new text begin ; new text end nursing homes deleted text begin , deleted text end new text begin ; new text end auditoriums deleted text begin , deleted text end new text begin ; new text end arenas deleted text begin , deleted text end new text begin ;
new text end meeting rooms deleted text begin , deleted text end new text begin ; new text end and common areas of rental apartment buildings deleted text begin ,
but excluding private, enclosed offices occupied exclusively by
smokers even though such offices may be visited by nonsmokers deleted text end .

Sec. 4.

Minnesota Statutes 2004, section 144.413,
subdivision 4, is amended to read:

Subd. 4.

Smoking.

"Smoking" new text begin means the inhaling,
exhaling, or combustion of any cigar, cigarette, pipe, or any
other lighted smoking equipment. Smoking new text end includes carrying a
lighted cigar, cigarette, pipe, or any other lighted smoking
equipment.

Sec. 5.

Minnesota Statutes 2004, section 144.413, is
amended by adding a subdivision to read:

new text begin Subd. 5. new text end

new text begin Public transportation. new text end

new text begin "Public transportation"
means public means of transportation, including light and
commuter rail transit; buses; enclosed bus and transit stops;
taxis, vans, limousines, and other for-hire vehicles other than
those being operated by the lessee; and ticketing, boarding, and
waiting areas in public transportation terminals.
new text end

Sec. 6.

Minnesota Statutes 2004, section 144.414, is
amended to read:

144.414 PROHIBITIONS AND EXCEPTIONS.

Subdivision 1.

Public places new text begin , places of employment,
public transportation, and public meetings new text end .

new text begin Smoking shall not
be permitted in and new text end no person shall smoke in a public place deleted text begin or deleted text end new text begin ,
new text end at a public meeting deleted text begin except in designated smoking areas deleted text end new text begin , in a
place of employment, or in public transportation, except as
provided in this section or section 144.4167 new text end . deleted text begin This prohibition
does not apply in cases in which an entire room or hall is used
for a private social function and seating arrangements are under
the control of the sponsor of the function and not of the
proprietor or person in charge of the place. Furthermore, this
prohibition shall not apply to places of work not usually
frequented by the general public, except that the state
commissioner of health shall establish rules to restrict or
prohibit smoking in factories, warehouses, and those places of
work where the close proximity of workers or the inadequacy of
ventilation causes smoke pollution detrimental to the health and
comfort of nonsmoking employees.
deleted text end

Subd. 2.

Day care premises.

Smoking is prohibited in a
day care center licensed under Minnesota Rules, parts 9503.0005
to 9503.0175, or in a family home or in a group family day care
provider home licensed under Minnesota Rules, parts 9502.0300 to
9502.0445, during its hours of operation. new text begin The proprietor of a
family home or group family day care provider must disclose to
parents or guardians of children cared for on the premises if
the proprietor permits smoking outside of its hours of
operation. Disclosure must include posting on the premises a
conspicuous written notice and orally informing parents or
guardians.
new text end

Subd. 3.

Health care facilities and clinics.

deleted text begin (a) deleted text end Smoking
is prohibited in any area of a hospital, health care clinic,
doctor's office, new text begin licensed residential facility for children, new text end or
other health care-related facility, deleted text begin other than deleted text end new text begin except that a
patient or resident in new text end a nursing home, boarding care facility,
or licensed residential facility deleted text begin , except as allowed in this
subdivision.
deleted text end

deleted text begin (b) Smoking by participants in peer reviewed scientific
studies related to the health effects of smoking may be allowed
in a separated room ventilated at a rate of 60 cubic feet per
minute per person pursuant to a policy that is approved by the
commissioner and is established by the administrator of the
program to minimize exposure of nonsmokers to deleted text end new text begin for adults may
new text end smoke new text begin in a designated separate, enclosed room if the room has a
separate ventilation system from the rest of the facility new text end .

new text begin Subd. 4. new text end

new text begin Public transportation vehicles. new text end

new text begin Smoking is
prohibited in public transportation vehicles except that the
driver of a public transportation vehicle may smoke when the
vehicle is being used for personal use. For purposes of this
subdivision, "personal use" means that the public transportation
vehicle is being used by the driver for private purposes and no
for-hire passengers are present. If a driver smokes pursuant to
this subdivision, the driver must post a conspicuous sign inside
the vehicle to inform passengers.
new text end

new text begin Subd. 5. new text end

new text begin Outdoor seating. new text end

new text begin Smoking is prohibited in the
outdoor seating area of a restaurant or bar, except that the
proprietor may designate for smoking up to 50 percent of the
outdoor seating capacity of the restaurant or bar provided the
location is appropriately signed as a smoking area.
new text end

Sec. 7.

Minnesota Statutes 2004, section 144.416, is
amended to read:

144.416 RESPONSIBILITIES OF PROPRIETORS.

new text begin (a) new text end The proprietor or other person in charge of a public
place new text begin , public transportation, place of employment, or public
meeting new text end shall make reasonable efforts to prevent smoking in the
public place new text begin , public transportation, place of employment, or
public meeting new text end by new text begin :
new text end

deleted text begin (a) deleted text end new text begin (i) new text end posting appropriate signs new text begin or by any other means
which may be appropriate new text end ; new text begin and
new text end

deleted text begin (b) arranging seating to provide a smoke-free area;
deleted text end

deleted text begin (c) asking smokers to refrain from smoking upon request of
a client or employee suffering discomfort from the smoke; or
deleted text end

deleted text begin (d) any other means which may be appropriate.
deleted text end

new text begin (ii) asking any person who smokes in an area where smoking
is prohibited to refrain from smoking and, if the person does
not refrain from smoking after being asked to do so, asking the
person to leave. If the offending party refuses to leave, the
operator shall handle the situation consistent with lawful
methods for handling other persons acting in a disorderly manner
or as a trespasser.
new text end

new text begin (b) The proprietor or other person in charge of a public
place, public meeting, public transportation, or place of
employment must not provide smoking equipment, including
ashtrays or matches, in areas where smoking is prohibited.
Nothing in this section prohibits the proprietor or other person
in charge from taking more stringent measures than those under
sections 144.414 to 144.417 to protect individuals from
second-hand smoke. The proprietor or other person in charge of
a restaurant or bar may not serve an individual who is in
violation of sections 144.411 to 144.417.
new text end

Sec. 8.

new text begin [144.4167] PERMITTED SMOKING.
new text end

new text begin Subdivision 1. new text end

new text begin Scientific study participants. new text end

new text begin Smoking by
participants in peer reviewed scientific studies related to the
health effects of smoking may be allowed in a separated room
ventilated at a rate of 60 cubic feet per minute per person
pursuant to a policy that is approved by the commissioner and is
established by the administrator of the program to minimize
exposure of nonsmokers to smoke.
new text end

new text begin Subd. 2. new text end

new text begin Traditional native american
ceremonies. new text end

new text begin Sections 144.414 to 144.417 do not prohibit the
lighting of tobacco by an Indian adult as part of a traditional
Indian spiritual or cultural ceremony. For purposes of this
section, an Indian is a person who is a member of an Indian
tribe as defined in section 260.755, subdivision 12.
new text end

new text begin Subd. 3. new text end

new text begin Private places. new text end

new text begin Except as provided in section
144.414, subdivision 2, nothing in sections 144.411 to 144.417
prohibits smoking in:
new text end

new text begin (1) private homes, private residences, or private
automobiles; or
new text end

new text begin (2) a hotel or motel sleeping room rented to one or more
guests.
new text end

Sec. 9.

Minnesota Statutes 2004, section 144.417, is
amended to read:

144.417 COMMISSIONER OF HEALTH, ENFORCEMENT,
deleted text begin PENALTIES deleted text end new text begin VIOLATIONS new text end .

Subdivision 1.

Rules.

deleted text begin (a) deleted text end The state commissioner of
health shall adopt rules necessary and reasonable to implement
the provisions of sections 144.411 to 144.417 deleted text begin , except as
provided for in section 144.414.
deleted text end

deleted text begin (b) Rules implementing sections 144.411 to 144.417 adopted
after January 1, 2002, may not take effect until approved by a
law enacted after January 1, 2002. This paragraph does not
apply to a rule or severable portion of a rule governing smoking
in office buildings, factories, warehouses, or similar places of
work, or in health care facilities. This paragraph does not
apply to a rule changing the definition of "restaurant" to make
it the same as the definition in section 157.15, subdivision 12 deleted text end .

Subd. 2.

deleted text begin penalties deleted text end new text begin violations new text end .

new text begin (a) It is unlawful for
any person, firm, limited liability company, corporation, or
other entity that owns, manages, operates, or otherwise controls
the use of an area in which smoking is prohibited under sections
144.414 to 144.417 to fail to comply with sections 144.414 to
144.417. For violations of this subdivision, it is an
affirmative defense that during the relevant time period, actual
control of the area was not exercised by the respondent, but
rather by a lessee, a sublessee, or any other person. To
establish an affirmative defense, the respondent shall submit an
affidavit and may submit any other relevant proof indicating
that the respondent did not exercise actual control of the area
during the relevant time period. The affidavit and other proof
shall be mailed by certified mail to the appropriate enforcement
officer within 30 days of receipt of a notice of violation.
new text end

new text begin (b) It is unlawful for an employer whose place of
employment is subject to sections 144.414 to 144.417 to fail to
comply with sections 144.414 to 144.417. For violations of
sections 144.414 to 144.417, it is an affirmative defense that
the employer has made good faith efforts to ensure that
employees comply with sections 144.414 to 144.417.
new text end

new text begin (c) It is unlawful for any person to smoke in an area where
smoking is prohibited or restricted under sections 144.414 to
144.417.
new text end

new text begin (d) new text end Any person who violates deleted text begin section 144.414 or
144.4165 deleted text end new text begin paragraph (c) new text end is guilty of a petty misdemeanor.

new text begin (e) A proprietor or person in charge of a public place,
public meeting, place of employment, or public transportation
must not retaliate or take adverse action against an employee or
anyone else who, in good faith, reports a violation of sections
144.414 to 144.417 to the proprietor or person in charge of the
public place, public meeting, place of employment, or public
transportation or to the commissioner of health or other
designee responsible for enforcing sections 144.414 to 144.417.
new text end

new text begin (f) No person or employer shall discharge, refuse to hire,
penalize, discriminate against, or in any manner retaliate
against any employee, applicant for employment, or customer
because the employee, applicant, or customer exercises any right
to a smoke-free environment provided by sections 144.414 to
144.417 or other law.
new text end

Subd. 3.

Injunction.

The state commissioner of health, a
board of health as defined in section 145A.02, subdivision 2, or
any affected party may institute an action in any court with
jurisdiction to enjoin repeated violations of deleted text begin section 144.416 or
144.4165 deleted text end new text begin sections 144.414 to 144.417 new text end .

Sec. 10. new text begin LOCAL GOVERNMENT ORDINANCES.
new text end

new text begin Nothing in Minnesota Statutes, sections 144.414 to 144.417,
prohibits a statutory or home rule charter city or county from
enacting and enforcing more stringent measures to protect
individuals from second-hand smoke.
new text end

Sec. 11. new text begin FREEDOM TO BREATHE ACT.
new text end

new text begin This act shall be referred to as the "Freedom to Breathe
Act of 2005."
new text end

Sec. 12. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2004, section 144.415, is repealed.
new text end