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Minnesota Legislature

Office of the Revisor of Statutes

SF 238

5th Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 5th Engrossment

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A bill for an act
relating to health; establishing the Freedom to Breathe Act of 2007; establishing
public policy to protect employees and the general public from the hazards of
secondhand smoke; prohibiting smoking in certain areas; providing penalties;
amending Minnesota Statutes 2006, sections 116L.17, subdivision 1; 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 2006, section 144.415.

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

Section 1.

Minnesota Statutes 2006, section 116L.17, subdivision 1, is amended to read:


Subdivision 1.

Definitions.

(a) For the purposes of this section, the following terms
have the meanings given them in this subdivision.

(b) "Commissioner" means the commissioner of employment and economic
development.

(c) "Dislocated worker" means an individual who is a resident of Minnesota at the
time employment ceased or was working in the state at the time employment ceased and:

(1) has been permanently separated or has received a notice of permanent separation
from public or private sector employment and is eligible for or has exhausted entitlement
to unemployment benefits, and is unlikely to return to the previous industry or occupation;

(2) has been long-term unemployed and has limited opportunities for employment
or reemployment in the same or a similar occupation in the area in which the individual
resides, including older individuals who may have substantial barriers to employment by
reason of age;

(3) has been self-employed, including farmers and ranchers, and is unemployed as a
result of general economic conditions in the community in which the individual resides or
because of natural disasters;deleted text begin or
deleted text end

(4) new text beginhas been permanently separated from employment in a restaurant, bar, or
lawful gambling organization from October 1, 2007, to October 1, 2009, due to the
implementation of any state law prohibiting smoking; or
new text end

new text begin (5) new text endis a displaced homemaker. A "displaced homemaker" is an individual who has
spent a substantial number of years in the home providing homemaking service and (i) has
been dependent upon the financial support of another; and now due to divorce, separation,
death, or disability of that person, must find employment to self support; or (ii) derived
the substantial share of support from public assistance on account of dependents in the
home and no longer receives such support.

To be eligible under this clause, the support must have ceased while the worker
resided in Minnesota.

(d) "Eligible organization" means a state or local government unit, nonprofit
organization, community action agency, business organization or association, or labor
organization.

(e) "Plant closing" means the announced or actual permanent shutdown of a single
site of employment, or one or more facilities or operating units within a single site of
employment.

(f) "Substantial layoff" means a permanent reduction in the workforce, which is
not a result of a plant closing, and which results in an employment loss at a single site
of employment during any 30-day period for at least 50 employees excluding those
employees that work less than 20 hours per week.

Sec. 2.

Minnesota Statutes 2006, 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 beginthe 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 beginemployees and the general public from the hazards of secondhand
smoke
new text endby deleted text beginlimitingdeleted text endnew text begin eliminatingnew text end smoking in public placesnew text begin, places of employment, public
transportation,
new text end and at public meetingsdeleted text begin to designated smoking areasdeleted text end.

Sec. 3.

Minnesota Statutes 2006, section 144.413, is amended by adding a subdivision
to read:


new text begin Subd. 1a. new text end

new text begin Indoor area. new text end

new text begin "Indoor area" means all space between a floor and a ceiling
that is bounded by walls, doorways, or windows, whether open or closed, covering
more than 50 percent of the combined surface area of the vertical planes constituting
the perimeter of the area. A wall includes any retractable divider, garage door, or other
physical barrier, whether temporary or permanent. A 0.011 gauge window screen with an
18 by 16 mesh count is not a wall.
new text end

Sec. 4.

Minnesota Statutes 2006, section 144.413, is amended by adding a subdivision
to read:


new text begin Subd. 1b. 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 contractual 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 indoor area where two or more
individuals gratuitously perform services for which individuals are ordinarily paid. A
place of employment includes, but is not limited to, 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, and rooms or areas containing photocopying equipment or other office
equipment used in common. Vehicles used in whole or in part for work purposes are
places of employment during hours of operation if more than one person is present. An
area in which work is performed in a private residence is a place of employment during
hours of operation if:
new text end

new text begin (1) the homeowner uses the area exclusively and regularly as a principal place of
business and has one or more on-site employees; or
new text end

new text begin (2) the homeowner uses the area exclusively and regularly as a place to meet or deal
with patients, clients, or customers in the normal course of the homeowner's trade or
business.
new text end

Sec. 5.

Minnesota Statutes 2006, section 144.413, subdivision 2, is amended to read:


Subd. 2.

Public place.

"Public place" means any enclosed, indoor area used by the
general publicdeleted text begin or serving as a place of workdeleted text end, including, but not limited to, restaurantsdeleted text begin,deleted text endnew text begin;
bars; any other food or liquor establishment;
new text end retail storesdeleted text begin, officesdeleted text end and other commercial
establishmentsdeleted text begin, public conveyances,deleted text endnew text begin;new text end educational facilities other than public schools,
as defined in section 120A.05, subdivisions 9, 11, and 13deleted text begin,deleted text endnew text begin;new text end hospitalsdeleted text begin,deleted text endnew text begin;new text end nursing homesdeleted text begin,deleted text endnew text begin;new text end
auditoriumsdeleted text begin,deleted text endnew text begin;new text end arenasdeleted text begin,deleted text endnew text begin;new text end meeting roomsdeleted text begin,deleted text endnew text begin;new text end and common areas of rental apartment buildingsdeleted text begin,
but excluding private, enclosed offices occupied exclusively by smokers even though
such offices may be visited by nonsmokers
deleted text end.

Sec. 6.

Minnesota Statutes 2006, section 144.413, subdivision 4, is amended to read:


Subd. 4.

Smoking.

"Smoking" new text beginmeans inhaling or exhaling smoke from any lighted
cigar, cigarette, pipe, or any other lighted tobacco or plant product. Smoking also
new text endincludes
carrying a lighted cigar, cigarette, pipe, or any other lighted deleted text beginsmoking equipmentdeleted text endnew text begin tobacco
or plant product intended for inhalation
new text end.

Sec. 7.

Minnesota Statutes 2006, 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. 8.

Minnesota Statutes 2006, section 144.414, is amended to read:


144.414 PROHIBITIONS.

Subdivision 1.

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

new text beginSmoking shall not be permitted in and new text endno person shall smoke in a public
place deleted text beginordeleted text endnew text begin,new text end at a public meeting deleted text beginexcept in designated smoking areas. 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 endnew text begin, in a place of employment, or in public transportation, except as
provided in this section or section 144.4167
new 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.

(a) Smoking is prohibited in any area of
a hospital, health care clinic, doctor's office, new text beginlicensed residential facility for children, new text endor
other health care-related facility, deleted text beginother thandeleted text end new text beginexcept that a patient or resident in new text enda nursing
home, boarding care facility, or licensed residential facilitydeleted text begin, except as allowed in this
subdivision
deleted text endnew text begin for adults may smoke in a designated separate, enclosed room maintained in
accordance with applicable state and federal laws
new text end.

(b) deleted text beginSmoking by participants in peer reviewed scientific studies related to the health
deleted text enddeleted text begineffects of smoking may be allowed in a separated room ventilated at a rate of 60 cubic
deleted text enddeleted text beginfeet per minute per person pursuant to a policy that is approved by the commissioner and
deleted text enddeleted text beginis established by the administrator of the program to minimize exposure of nonsmokers
deleted text enddeleted text beginto smoke.deleted text end new text beginExcept as provided in section 246.0141, smoking by patients in a locked
psychiatric unit may be allowed in a separated well-ventilated area in the unit under a
policy established by the administrator of the program that allows the treating physician to
approve smoking if, in the opinion of the treating physician, the benefits to be gained in
obtaining patient cooperation with treatment outweigh the negative impacts of smoking.
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 under this subdivision,
the driver must post a conspicuous sign inside the vehicle to inform passengers.
new text end

Sec. 9.

Minnesota Statutes 2006, section 144.416, is amended to read:


144.416 RESPONSIBILITIES OF PROPRIETORS.

new text begin (a) new text endThe proprietor or other person deleted text beginin chargedeleted text endnew text begin, firm, limited liability company,
corporation, or other entity that owns, leases, manages, operates, or otherwise controls the
use
new text end of a public placenew text begin, public transportation, place of employment, or public meetingnew text end shall
make reasonable efforts to prevent smoking in the public placenew text begin, public transportation,
place of employment, or public meeting
new text end bynew text begin:
new text end

deleted text begin (a)deleted text end new text begin(1) new text endposting appropriate signsdeleted text begin;
deleted 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)deleted text end new text beginor by new text endany other means which may be appropriatenew text begin; and
new text end

new text begin (2) 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 person refuses to leave, the proprietor, person, or entity
in charge 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 or entity 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 or entity in charge from taking more
stringent measures than those under sections 144.414 to 144.417 to protect individuals
from secondhand smoke. The proprietor or other person or entity 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. 10.

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 smoking by a Native American as part of a traditional Native American
spiritual or cultural ceremony. For purposes of this section, a Native American 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 when they are not in
use as a place of employment, as defined in section 144.413, subdivision 1b; or
new text end

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

new text begin Subd. 4. new text end

new text begin Tobacco products shop. new text end

new text begin Sections 144.414 to 144.417 do not prohibit the
lighting of tobacco in a tobacco products shop by a customer or potential customer for the
specific purpose of sampling tobacco products. For the purposes of this subdivision, a
tobacco products shop is a retail establishment with an entrance door opening directly
to the outside that derives more than 90 percent of its gross revenue from the sale of
loose tobacco, plants, or herbs and cigars, cigarettes, pipes, and other smoking devices
for burning tobacco and related smoking accessories and in which the sale of other
products is merely incidental. "Tobacco products shop" does not include a tobacco
department or section of any individual business establishment with any type of liquor,
food, or restaurant license.
new text end

new text begin Subd. 5. new text end

new text begin Heavy commercial vehicles. new text end

new text begin Sections 144.414 to 144.417 do not prohibit
smoking in the cabs of motor vehicles registered under section 168.013, subdivision 1e,
with a total gross weight of 26,001 pounds or greater.
new text end

new text begin Subd. 6. new text end

new text begin Farm vehicles and construction equipment. new text end

new text begin Sections 144.414 to
144.417 do not prohibit smoking in farm trucks, as defined in section 168.011, subdivision
17; implements of husbandry, as defined in section 168A.01, subdivision 8; and special
mobile equipment, as defined in section 168.011, subdivision 22. This subdivision applies
to farm trucks, implements of husbandry, and special mobile equipment, when being
used for their intended purposes.
new text end

new text begin Subd. 7. new text end

new text begin Family farms. new text end

new text begin Sections 144.414 to 144.417 do not prohibit smoking in
the house, garage, barns, and other buildings on a family farm that meets the following
criteria: (1) the family farm is engaged in farming, as defined in section 500.24,
subdivision 2, paragraph (a); (2) the family farm meets the definition of family farm
under section 500.24, subdivision 2, paragraph (b), (c), (j), or (l); and (3) the family farm
employs two or fewer persons who are not family members.
new text end

new text begin Subd. 8. new text end

new text begin Disabled veterans rest camp. new text end

new text begin Sections 144.414 to 144.417 do not prohibit
smoking in the disabled veterans rest camp located in Washington County, established as
of January 1, 2007.
new text end

new text begin Subd. 9. new text end

new text begin Theatrical productions. new text end

new text begin Sections 144.414 to 144.417 do not prohibit
smoking by actors and actresses as part of a theatrical performance conducted in
compliance with section 366.01. Notice of smoking in a performance shall be given to
theater patrons in advance and shall be included in performance programs.
new text end

Sec. 11.

Minnesota Statutes 2006, section 144.417, is amended to read:


144.417 COMMISSIONER OF HEALTH, ENFORCEMENT, PENALTIES.

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 144.417deleted 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 beginPenaltiesdeleted text endnew text begin Violationsnew text end.

deleted text begin Any person who violates section 144.414 or
144.4165 is guilty of a petty misdemeanor.
deleted text end new text begin (a) Any proprietor, person, or entity that owns,
leases, manages, operates, or otherwise controls the use of an area in which smoking is
prohibited under sections 144.414 to new text begin144.417new text end, and that knowingly fails to comply with
sections new text begin144.414new text end to 144.417, is guilty of a petty misdemeanor.
new text end

new text begin (b) Any person who smokes in an area where smoking is prohibited or restricted
under sections 144.414 to 144.417 is guilty of a petty misdemeanor.
new text end

new text begin (c) A proprietor, person, or entity 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 (d) 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 beginsection 144.416 or 144.4165deleted text endnew text begin
sections 144.414 to 144.417
new text end.

new text begin Subd. 4. new text end

new text begin Local government ordinances. new text end

new text begin (a) Nothing in 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 secondhand smoke.
new text end

new text begin (b) Except as provided in sections 144.411 to 144.417, smoking is permitted outside
of restaurants, bars, and bingo halls unless limited or prohibited by restrictions adopted in
accordance with paragraph (a).
new text end

Sec. 12. new text beginCHARITABLE GAMBLING IMPACT STUDY.
new text end

new text begin The Gambling Control Board, in cooperation with the commissioner of revenue,
shall study the impact of a statewide smoking ban in public places on lawful gambling.
The board shall provide a summary report with recommendations to the governor and the
appropriate committees of the legislature prior to March 31, 2008.
new text end

Sec. 13. new text beginDISLOCATED WORKER PROGRAM; ALLOCATION OF FUNDS.
new text end

new text begin The Job Skills Partnership Board must enable the dislocated worker program under
Minnesota Statutes, section 116L.17, to provide services under that program to employees
of bars, restaurants, and lawful gambling organizations who become unemployed from
October 1, 2007, to October 1, 2009, due to the provisions of this act.
new text end

Sec. 14. new text beginFREEDOM TO BREATHE ACT.
new text end

new text begin This act shall be referred to as the "Freedom to Breathe Act of 2007."
new text end

Sec. 15. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 144.415, new text end new text begin is repealed.
new text end

Sec. 16. new text beginEFFECTIVE DATE.
new text end

new text begin Sections 1 to 15 are effective October 1, 2007.
new text end