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SF 238

1st Unofficial Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.
1.1A bill for an act
1.2relating to health; establishing the Freedom to Breathe Act of 2007; establishing
1.3public policy to protect employees and the general public from the known hazards
1.4of secondhand smoke; requiring persons to refrain from smoking in certain areas;
1.5amending Minnesota Statutes 2006, sections 116L.17, subdivision 1; 144.412;
1.6144.413, subdivisions 2, 4, by adding subdivisions; 144.414; 144.416; 144.417;
1.7proposing coding for new law in Minnesota Statutes, chapter 144.

1.9    Section 1. Minnesota Statutes 2006, section 116L.17, subdivision 1, is amended to read:
1.10    Subdivision 1. Definitions. (a) For the purposes of this section, the following terms
1.11have the meanings given them in this subdivision.
1.12    (b) "Commissioner" means the commissioner of employment and economic
1.14    (c) "Dislocated worker" means an individual who is a resident of Minnesota at the
1.15time employment ceased or was working in the state at the time employment ceased and:
1.16    (1) has been permanently separated or has received a notice of permanent separation
1.17from public or private sector employment and is eligible for or has exhausted entitlement
1.18to unemployment benefits, and is unlikely to return to the previous industry or occupation;
1.19    (2) has been long-term unemployed and has limited opportunities for employment
1.20or reemployment in the same or a similar occupation in the area in which the individual
1.21resides, including older individuals who may have substantial barriers to employment by
1.22reason of age;
1.23    (3) has been self-employed, including farmers and ranchers, and is unemployed as a
1.24result of general economic conditions in the community in which the individual resides or
1.25because of natural disasters; or
2.1    (4) has been permanently separated from employment in a restaurant or a bar due to
2.2the implementation of any state law prohibiting smoking; or
2.3    (5) is a displaced homemaker. A "displaced homemaker" is an individual who has
2.4spent a substantial number of years in the home providing homemaking service and (i) has
2.5been dependent upon the financial support of another; and now due to divorce, separation,
2.6death, or disability of that person, must find employment to self support; or (ii) derived
2.7the substantial share of support from public assistance on account of dependents in the
2.8home and no longer receives such support.
2.9    To be eligible under this clause, the support must have ceased while the worker
2.10resided in Minnesota.
2.11    (d) "Eligible organization" means a state or local government unit, nonprofit
2.12organization, community action agency, business organization or association, or labor
2.14    (e) "Plant closing" means the announced or actual permanent shutdown of a single
2.15site of employment, or one or more facilities or operating units within a single site of
2.17    (f) "Substantial layoff" means a permanent reduction in the workforce, which is
2.18not a result of a plant closing, and which results in an employment loss at a single site
2.19of employment during any 30-day period for at least 50 employees excluding those
2.20employees that work less than 20 hours per week.

2.21    Sec. 2. Minnesota Statutes 2006, section 144.412, is amended to read:
2.22144.412 PUBLIC POLICY.
2.23    The purpose of sections 144.411 to 144.417 is to protect the public health, comfort
2.24and environment by prohibiting smoking in areas where children or ill or injured persons
2.25are present, and employees and the general public from the known hazards of secondhand
2.26smoke by limiting eliminating smoking in public places, places of employment, public
2.27transportation, and at public meetings to designated smoking areas.

2.28    Sec. 3. Minnesota Statutes 2006, section 144.413, is amended by adding a subdivision
2.29to read:
2.30    Subd. 1a. Indoor area. "Indoor area" means all space between a floor and a ceiling
2.31that is bounded on two or more sides by walls, whether temporary or permanent, or by
2.32doorways and windows, whether open or closed. A wall includes any retractable divider,
2.33garage door, or other physical barrier that substantially encloses a side.

3.1    Sec. 4. Minnesota Statutes 2006, section 144.413, is amended by adding a subdivision
3.2to read:
3.3    Subd. 1b. Place of employment. "Place of employment" means any indoor area
3.4at which two or more individuals perform any type of a service for consideration of
3.5payment under any type of contractual relationship, including, but not limited to, an
3.6employment relationship with or for a private corporation, partnership, individual, or
3.7government agency. Place of employment includes any indoor area where two or more
3.8individuals gratuitously perform services for which individuals are ordinarily paid. A
3.9place of employment includes, but is not limited to, public conveyances, factories,
3.10warehouses, offices, retail stores, restaurants, bars, banquet facilities, theaters, food stores,
3.11banks, financial institutions, employee cafeterias, lounges, auditoriums, gymnasiums,
3.12restrooms, elevators, hallways, museums, libraries, bowling establishments, employee
3.13medical facilities, and rooms or areas containing photocopying equipment or other office
3.14equipment used in common. Vehicles used in whole or in part for work purposes are
3.15places of employment during hours of operation if more than one person is present. An
3.16area in which work is performed in a private residence is a place of employment during
3.17hours of operation if:
3.18    (1) the homeowner uses the area exclusively and regularly as a principal place of
3.19business and has one or more on-site employees; or
3.20    (2) the homeowner uses the area exclusively and regularly as a place to meet or deal
3.21with patients, clients, or customers in the normal course of the homeowner's trade or

3.23    Sec. 5. Minnesota Statutes 2006, section 144.413, subdivision 2, is amended to read:
3.24    Subd. 2. Public place. "Public place" means any enclosed, indoor area used by the
3.25general public or serving as a place of work, including, but not limited to, restaurants,;
3.26bars; any other food or liquor establishment; retail stores, offices and other commercial
3.27establishments, public conveyances,; educational facilities other than public schools,
3.28as defined in section 120A.05, subdivisions 9, 11, and 13,; hospitals,; nursing homes,;
3.29auditoriums,; arenas,; meeting rooms,; and common areas of rental apartment buildings,
3.30but excluding private, enclosed offices occupied exclusively by smokers even though
3.31such offices may be visited by nonsmokers.

3.32    Sec. 6. Minnesota Statutes 2006, section 144.413, subdivision 4, is amended to read:
3.33    Subd. 4. Smoking. "Smoking" means inhaling or exhaling smoke from any lighted
3.34cigar, cigarette, pipe, or any other lighted tobacco or plant product. Smoking also includes
4.1carrying a lighted cigar, cigarette, pipe, or any other lighted smoking equipment tobacco
4.2or plant product intended for inhalation.

4.3    Sec. 7. Minnesota Statutes 2006, section 144.413, is amended by adding a subdivision
4.4to read:
4.5    Subd. 5. Public transportation. "Public transportation" means public means of
4.6transportation, including light and commuter rail transit; buses; enclosed bus and transit
4.7stops; taxis, vans, limousines, and other for-hire vehicles other than those being operated
4.8by the lessee; and ticketing, boarding, and waiting areas in public transportation terminals.

4.9    Sec. 8. Minnesota Statutes 2006, section 144.414, is amended to read:
4.10144.414 PROHIBITIONS.
4.11    Subdivision 1. Public places, places of employment, public transportation, and
4.12public meetings. (a) Smoking shall not be permitted in and no person shall smoke in a
4.13public place or, at a public meeting except in designated smoking areas. This prohibition
4.14does not apply in cases in which an entire room or hall is used for a private social function
4.15and seating arrangements are under the control of the sponsor of the function and not of
4.16the proprietor or person in charge of the place. Furthermore, this prohibition shall not
4.17apply to places of work not usually frequented by the general public, except that the state
4.18commissioner of health shall establish rules to restrict or prohibit smoking in factories,
4.19warehouses, and those places of work where the close proximity of workers or the
4.20inadequacy of ventilation causes smoke pollution detrimental to the health and comfort of
4.21nonsmoking employees, in a place of employment, or in public transportation, except as
4.22provided in this section or section 144.4167.
4.23    (b) Sections 144.414 to 141.417 become effective for bars, bingo halls, and
4.24restaurants on January 1, 2009.
4.25    Subd. 2. Day care premises. Smoking is prohibited in a day care center licensed
4.26under Minnesota Rules, parts 9503.0005 to 9503.0175, or in a family home or in a
4.27group family day care provider home licensed under Minnesota Rules, parts 9502.0300
4.28to 9502.0445, during its hours of operation. The proprietor of a family home or group
4.29family day care provider must disclose to parents or guardians of children cared for on the
4.30premises if the proprietor permits smoking outside of its hours of operation. Disclosure
4.31must include posting on the premises a conspicuous written notice and orally informing
4.32parents or guardians.
4.33    Subd. 3. Health care facilities and clinics. (a) Smoking is prohibited in any area of
4.34a hospital, health care clinic, doctor's office, licensed residential facility for children, or
5.1other health care-related facility, other than except that a patient or resident in a nursing
5.2home, boarding care facility, or licensed residential facility, except as allowed in this
5.3subdivision for adults may smoke in a designated separate, enclosed room maintained in
5.4accordance with applicable state and federal laws.
5.5    (b) Smoking by participants in peer reviewed scientific studies related to the health
5.6effects of smoking may be allowed in a separated room ventilated at a rate of 60 cubic
5.7feet per minute per person pursuant to a policy that is approved by the commissioner and
5.8is established by the administrator of the program to minimize exposure of nonsmokers
5.9to smoke.
5.10    Subd. 4. Public transportation vehicles. Smoking is prohibited in public
5.11transportation vehicles except that the driver of a public transportation vehicle may smoke
5.12when the vehicle is being used for personal use. For purposes of this subdivision, "personal
5.13use" means that the public transportation vehicle is being used by the driver for private
5.14purposes and no for-hire passengers are present. If a driver smokes under this subdivision,
5.15the driver must post a conspicuous sign inside the vehicle to inform passengers.

5.16    Sec. 9. Minnesota Statutes 2006, section 144.416, is amended to read:
5.18    (a) The proprietor or other person in charge, firm, limited liability company,
5.19corporation, or other entity that owns, leases, manages, operates, or otherwise controls the
5.20use of a public place, public transportation, place of employment, or public meeting shall
5.21make reasonable efforts to prevent smoking in the public place, public transportation,
5.22place of employment, or public meeting by:
5.23    (a) (1) posting appropriate signs;
5.24    (b) arranging seating to provide a smoke-free area;
5.25    (c) asking smokers to refrain from smoking upon request of a client or employee
5.26suffering discomfort from the smoke; or
5.27    (d) or by any other means which may be appropriate; and
5.28     (2) asking any person who smokes in an area where smoking is prohibited to refrain
5.29from smoking and, if the person does not refrain from smoking after being asked to do so,
5.30asking the person to leave. If the person refuses to leave, the proprietor, person, or entity
5.31in charge shall handle the situation consistent with lawful methods for handling other
5.32persons acting in a disorderly manner or as a trespasser.
5.33    (b) The proprietor or other person or entity in charge of a public place, public
5.34meeting, public transportation, or place of employment must not provide smoking
5.35equipment, including ashtrays, in areas where smoking is prohibited. Nothing in this
6.1section prohibits the proprietor or other person or entity in charge from taking more
6.2stringent measures than those under sections 144.414 to 144.417 to protect individuals
6.3from secondhand smoke. The proprietor or other person or entity in charge of a restaurant
6.4or bar may not serve an individual who is in violation of sections 144.411 to 144.417.

6.5    Sec. 10. [144.4167] PERMITTED SMOKING.
6.6    Subdivision 1. Scientific study participants. Smoking by participants in peer
6.7reviewed scientific studies related to the health effects of smoking may be allowed in a
6.8separated room ventilated at a rate of 60 cubic feet per minute per person pursuant to a
6.9policy that is approved by the commissioner and is established by the administrator of the
6.10program to minimize exposure of nonsmokers to smoke.
6.11    Subd. 2. Traditional Native American ceremonies. Sections 144.414 to 144.417
6.12do not prohibit smoking by a Native American as part of a traditional Native American
6.13spiritual or cultural ceremony. For purposes of this section, a Native American is a person
6.14who is a member of an Indian tribe as defined in section 260.755, subdivision 12.
6.15    Subd. 3. Private places. Except as provided in section 144.414, subdivision 2,
6.16nothing in sections 144.411 to 144.417 prohibits smoking in:
6.17    (1) private homes, private residences, or private automobiles when they are not in
6.18use as a place of employment, as defined in section 144.413, subdivision 1b; or
6.19    (2) a hotel or motel sleeping room rented to one or more guests.
6.20    Subd. 4. Tobacco products shop. Sections 144.414 to 144.417 do not prohibit the
6.21lighting of tobacco in a tobacco products shop by a customer or potential customer for
6.22the specific purpose of sampling tobacco products prior to purchase. For the purposes of
6.23this subdivision, a tobacco products shop is a retail business that earns at least 90 percent
6.24of its gross receipts from the sale of tobacco products and paraphernalia associated with
6.25tobacco use.
6.26    Subd. 5. Approved bars. (a) A city, town, or county, by majority vote of the
6.27governing body, may issue a license to a bar, upon request of the owner, to permit smoking
6.28in the bar or in a designated smoking section of the bar. The city, town, or county shall set
6.29the fee for a smoking license after providing notice and a hearing on the proposed fees.
6.30Sections 144.414 to 144.417 do not prohibit smoking in bars that have a smoking license.
6.31    (b) For purposes of this subdivision, a "bar" means an establishment that has an
6.32on-sale intoxicating liquor license, an on-sale nonintoxicating malt liquor license, an
6.33on-sale 3.2 percent malt liquor license, a wine license, or a strong beer liquor license; and
6.34    (1) the bar's sales of beer, nonintoxicating malt liquor, 3.2 percent malt liquor, wine,
6.35and intoxicating liquor are demonstrated for an existing licensee to be, or for an initial
7.1licensee projected to be, more than 50 percent of the total net sales of food and beverages,
7.2after taxes, that are served in the establishment. For the purposes of this section, "sales"
7.3are the sales reported to the Department of Revenue from the most recent calendar year; or
7.4    (2) the bar:
7.5    (i) is separated from the restaurant on all sides by continuous floor-to-ceiling walls,
7.6which are interrupted only by closable doors that are continuously closed, except when a
7.7person is actively entering or exiting the bar;
7.8    (ii) has ventilation systems that are totally separated from the restaurant, with the bar
7.9maintaining a negative air pressure in relation to the adjacent restaurant;
7.10    (iii) does not permit entrance or employment of minors or entrance of employees at
7.11any time notwithstanding section 340A.503, subdivision 4, paragraph (b); and
7.12    (iv) has a food or beverage license that is separate from the restaurant, issued by
7.13the appropriate licensing agency.
7.14    Subd. 6. Heavy commercial vehicles. Sections 144.414 to 144.417 do not prohibit
7.15smoking in motor vehicles registered under section 168.013, subdivision 1e, with a total
7.16gross weight of 26,001 pounds or greater.

7.17    Sec. 11. Minnesota Statutes 2006, section 144.417, is amended to read:
7.19    Subdivision 1. Rules. (a) The state commissioner of health shall adopt rules
7.20necessary and reasonable to implement the provisions of sections 144.411 to 144.417,
7.21except as provided for in section 144.414.
7.22    (b) Rules implementing sections 144.411 to 144.417 adopted after January 1, 2002,
7.23may not take effect until approved by a law enacted after January 1, 2002. This paragraph
7.24does not apply to a rule or severable portion of a rule governing smoking in office
7.25buildings, factories, warehouses, or similar places of work, or in health care facilities. This
7.26paragraph does not apply to a rule changing the definition of "restaurant" to make it the
7.27same as the definition in section 157.15, subdivision 12.
7.28    Subd. 2. Penalties Violations. Any person who violates section 144.414 or
7.29144.4165 is guilty of a petty misdemeanor.(a) Any proprietor, person, or entity that owns,
7.30leases, manages, operates, or otherwise controls the use of an area in which smoking is
7.31prohibited under sections 144.414 to 144.417, and that knowingly fails to comply with
7.32sections 144.414 to 144.417, is guilty of a petty misdemeanor.
7.33    (b) Any person who smokes in an area where smoking is prohibited or restricted
7.34under sections 144.414 to 144.417 is guilty of a petty misdemeanor.
8.1    (c) A proprietor, person, or entity in charge of a public place, public meeting, place
8.2of employment, or public transportation must not retaliate or take adverse action against
8.3an employee or anyone else who, in good faith, reports a violation of sections 144.414 to
8.4144.417 to the proprietor or person in charge of the public place, public meeting, place of
8.5employment, or public transportation, or to the commissioner of health or other designee
8.6responsible for enforcing sections 144.414 to 144.417.
8.7    (d) No person or employer shall discharge, refuse to hire, penalize, discriminate
8.8against, or in any manner retaliate against any employee, applicant for employment, or
8.9customer because the employee, applicant, or customer exercises any right to a smoke-free
8.10environment provided by sections 144.414 to 144.417 or other law.
8.11    Subd. 3. Injunction. The state commissioner of health, a board of health as defined
8.12in section 145A.02, subdivision 2, or any affected party may institute an action in any
8.13court with jurisdiction to enjoin repeated violations of section 144.416 or 144.4165
8.14sections 144.414 to 144.417.

8.16    The Jobs Skills Partnership Board must enable the dislocated worker program under
8.17Minnesota Statutes, section 116L.17, to provide services under that program to employees
8.18of bars, restaurants, and lawful gambling organizations who become unemployed due, in
8.19whole or in part, to the provisions of this act.

8.20    Sec. 13. FREEDOM TO BREATHE ACT.
8.21    This act shall be referred to as the "Freedom to Breathe Act of 2007."