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SF 238

2nd 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, except retail tobacco
3.27products shops as provided in section 144.4167, subdivision 4, and other commercial
3.28establishments, public conveyances,; educational facilities other than public schools,
3.29as defined in section 120A.05, subdivisions 9, 11, and 13,; hospitals,; nursing homes,;
3.30auditoriums,; arenas,; meeting rooms,; and common areas of rental apartment buildings,
3.31but excluding private, enclosed offices occupied exclusively by smokers even though
3.32such offices may be visited by nonsmokers.

3.33    Sec. 6. Minnesota Statutes 2006, section 144.413, subdivision 4, is amended to read:
4.1    Subd. 4. Smoking. "Smoking" means inhaling or exhaling smoke from any lighted
4.2cigar, cigarette, pipe, or any other lighted tobacco or plant product. Smoking also includes
4.3carrying a lighted cigar, cigarette, pipe, or any other lighted smoking equipment tobacco
4.4or plant product intended for inhalation.

4.5    Sec. 7. Minnesota Statutes 2006, section 144.413, is amended by adding a subdivision
4.6to read:
4.7    Subd. 5. Public transportation. "Public transportation" means public means of
4.8transportation, including light and commuter rail transit; buses; enclosed bus and transit
4.9stops; taxis, vans, limousines, and other for-hire vehicles other than those being operated
4.10by the lessee; and ticketing, boarding, and waiting areas in public transportation terminals.

4.11    Sec. 8. Minnesota Statutes 2006, section 144.414, is amended to read:
4.12144.414 PROHIBITIONS.
4.13    Subdivision 1. Public places, places of employment, public transportation, and
4.14public meetings. (a) Smoking shall not be permitted in and no person shall smoke in a
4.15public place or, at a public meeting except in designated smoking areas. This prohibition
4.16does not apply in cases in which an entire room or hall is used for a private social function
4.17and seating arrangements are under the control of the sponsor of the function and not of
4.18the proprietor or person in charge of the place. Furthermore, this prohibition shall not
4.19apply to places of work not usually frequented by the general public, except that the state
4.20commissioner of health shall establish rules to restrict or prohibit smoking in factories,
4.21warehouses, and those places of work where the close proximity of workers or the
4.22inadequacy of ventilation causes smoke pollution detrimental to the health and comfort of
4.23nonsmoking employees, in a place of employment, or in public transportation, except as
4.24provided in this section or section 144.4167.
4.25    (b) Sections 144.414 to 141.417 become effective for bars, bingo halls, and
4.26restaurants on January 1, 2009.
4.27    (c) Smoking marijuana, including the medical use of marijuana, shall not be
4.28permitted in and no person shall smoke marijuana in a place of employment.
4.29    Subd. 2. Day care premises. Smoking is prohibited in a day care center licensed
4.30under Minnesota Rules, parts 9503.0005 to 9503.0175, or in a family home or in a
4.31group family day care provider home licensed under Minnesota Rules, parts 9502.0300
4.32to 9502.0445, during its hours of operation. The proprietor of a family home or group
4.33family day care provider must disclose to parents or guardians of children cared for on the
4.34premises if the proprietor permits smoking outside of its hours of operation. Disclosure
5.1must include posting on the premises a conspicuous written notice and orally informing
5.2parents or guardians.
5.3    Subd. 3. Health care facilities and clinics. (a) Smoking is prohibited in any area of
5.4a hospital, health care clinic, doctor's office, licensed residential facility for children, or
5.5other health care-related facility, other than except that a patient or resident in a nursing
5.6home, boarding care facility, or licensed residential facility, except as allowed in this
5.7subdivision for adults may smoke in a designated separate, enclosed room maintained in
5.8accordance with applicable state and federal laws.
5.9    (b) Smoking by participants in peer reviewed scientific studies related to the health
5.10effects of smoking may be allowed in a separated room ventilated at a rate of 60 cubic
5.11feet per minute per person pursuant to a policy that is approved by the commissioner and
5.12is established by the administrator of the program to minimize exposure of nonsmokers
5.13to smoke.
5.14    Subd. 4. Public transportation vehicles. Smoking is prohibited in public
5.15transportation vehicles except that the driver of a public transportation vehicle may smoke
5.16when the vehicle is being used for personal use. For purposes of this subdivision, "personal
5.17use" means that the public transportation vehicle is being used by the driver for private
5.18purposes and no for-hire passengers are present. If a driver smokes under this subdivision,
5.19the driver must post a conspicuous sign inside the vehicle to inform passengers.

5.20    Sec. 9. Minnesota Statutes 2006, section 144.416, is amended to read:
5.22    (a) The proprietor or other person in charge, firm, limited liability company,
5.23corporation, or other entity that owns, leases, manages, operates, or otherwise controls the
5.24use of a public place, public transportation, place of employment, or public meeting shall
5.25make reasonable efforts to prevent smoking in the public place, public transportation,
5.26place of employment, or public meeting by:
5.27    (a) (1) posting appropriate signs;
5.28    (b) arranging seating to provide a smoke-free area;
5.29    (c) asking smokers to refrain from smoking upon request of a client or employee
5.30suffering discomfort from the smoke; or
5.31    (d) or by any other means which may be appropriate; and
5.32     (2) asking any person who smokes in an area where smoking is prohibited to refrain
5.33from smoking and, if the person does not refrain from smoking after being asked to do so,
5.34asking the person to leave. If the person refuses to leave, the proprietor, person, or entity
6.1in charge shall handle the situation consistent with lawful methods for handling other
6.2persons acting in a disorderly manner or as a trespasser.
6.3    (b) The proprietor or other person or entity in charge of a public place, public
6.4meeting, public transportation, or place of employment must not provide smoking
6.5equipment, including ashtrays, in areas where smoking is prohibited. Nothing in this
6.6section prohibits the proprietor or other person or entity in charge from taking more
6.7stringent measures than those under sections 144.414 to 144.417 to protect individuals
6.8from secondhand smoke. The proprietor or other person or entity in charge of a restaurant
6.9or bar may not serve an individual who is in violation of sections 144.411 to 144.417.

6.10    Sec. 10. [144.4167] PERMITTED SMOKING.
6.11    Subdivision 1. Scientific study participants. Smoking by participants in peer
6.12reviewed scientific studies related to the health effects of smoking may be allowed in a
6.13separated room ventilated at a rate of 60 cubic feet per minute per person pursuant to a
6.14policy that is approved by the commissioner and is established by the administrator of the
6.15program to minimize exposure of nonsmokers to smoke.
6.16    Subd. 2. Traditional Native American ceremonies. Sections 144.414 to 144.417
6.17do not prohibit smoking by a Native American as part of a traditional Native American
6.18spiritual or cultural ceremony. For purposes of this section, a Native American is a person
6.19who is a member of an Indian tribe as defined in section 260.755, subdivision 12.
6.20    Subd. 3. Private places. Except as provided in section 144.414, subdivision 2,
6.21nothing in sections 144.411 to 144.417 prohibits smoking in:
6.22    (1) private homes, private residences, or private automobiles when they are not in
6.23use as a place of employment, as defined in section 144.413, subdivision 1b; or
6.24    (2) a hotel or motel sleeping room rented to one or more guests.
6.25    Subd. 4. Tobacco products shop. Sections 144.414 to 144.417 do not prohibit the
6.26lighting of tobacco in a tobacco products shop by a customer or potential customer. For
6.27the purposes of this subdivision, a tobacco products shop is a retail business that earns at
6.28least 90 percent of its gross receipts from the sale of tobacco products and paraphernalia
6.29associated with tobacco use.
6.30    Subd. 5. Approved smoking rooms. (a) A city, town, or county, by majority vote
6.31of the governing body, may issue a license to a bar, upon request of the owner, to permit
6.32smoking in a designated smoking room of the bar. The city, town, or county shall set
6.33the fee for a smoking license after providing notice and a hearing on the proposed fees.
6.34Sections 144.414 to 144.417 do not prohibit smoking in smoking rooms of bars that
6.35have a smoking license.
7.1    (b) For purposes of this subdivision, a "bar" means an establishment that has an
7.2on-sale intoxicating liquor license, an on-sale nonintoxicating malt liquor license, an
7.3on-sale 3.2 percent malt liquor license, a wine license, or a strong beer liquor license; and
7.4    (1) the bar's sales of beer, nonintoxicating malt liquor, 3.2 percent malt liquor, wine,
7.5and intoxicating liquor are demonstrated for an existing licensee to be, or for an initial
7.6licensee projected to be, more than 50 percent of the total net sales of food and beverages,
7.7after taxes, that are served in the establishment. For the purposes of this section, "sales" are
7.8the sales reported to the Department of Revenue from the most recent calendar year; and
7.9    (2) the smoking room:
7.10    (i) is separated from the remainder of the bar on all sides by continuous
7.11floor-to-ceiling walls, which are interrupted only by closable doors that are continuously
7.12closed, except when a person is actively entering or exiting the smoking room;
7.13    (ii) has ventilation systems that are totally separated from the remainder of the bar,
7.14with the smoking room maintaining a negative air pressure in relation to the remainder
7.15of the bar; and
7.16    (iii) does not permit entrance or employment of minors or entrance of employees
7.17at any time, except after closing or in an emergency, notwithstanding section 340A.503,
7.18subdivision 4, paragraph (b).
7.19    Subd. 6. Heavy commercial vehicles. Sections 144.414 to 144.417 do not prohibit
7.20smoking in motor vehicles registered under section 168.013, subdivision 1e, with a total
7.21gross weight of 26,001 pounds or greater.
7.22    Subd. 7. Private clubs with no employees. Sections 144.414 to 144.417 do not
7.23prohibit smoking in private clubs that have had no employees for the past five years.
7.24    Subd. 8. Farm vehicles and construction equipment. Sections 144.414 to 144.417
7.25do not prohibit smoking in farm trucks, as defined in section 168.011, subdivision 22;
7.26implements of husbandry, as defined in section 168A.01, subdivision 8; and special mobile
7.27equipment, as defined in section 168.011, subdivision 22.
7.28    Subd. 9. Agricultural land. Sections 144.414 to 144.417 do not prohibit smoking
7.29on property classified as class 2 property, under section 273.13, subdivision 23, including
7.30the house and garage and immediately surrounding one acre of land.
7.31    Subd. 10. Disabled veterans rest camps. Sections 144.414 to 144.417 do not
7.32prohibit smoking in disabled veterans rest camps.

7.33    Sec. 11. Minnesota Statutes 2006, section 144.417, is amended to read:
8.1    Subdivision 1. Rules. (a) The state commissioner of health shall adopt rules
8.2necessary and reasonable to implement the provisions of sections 144.411 to 144.417,
8.3except as provided for in section 144.414.
8.4    (b) Rules implementing sections 144.411 to 144.417 adopted after January 1, 2002,
8.5may not take effect until approved by a law enacted after January 1, 2002. This paragraph
8.6does not apply to a rule or severable portion of a rule governing smoking in office
8.7buildings, factories, warehouses, or similar places of work, or in health care facilities. This
8.8paragraph does not apply to a rule changing the definition of "restaurant" to make it the
8.9same as the definition in section 157.15, subdivision 12.
8.10    Subd. 2. Penalties Violations. Any person who violates section 144.414 or
8.11144.4165 is guilty of a petty misdemeanor.(a) Any proprietor, person, or entity that owns,
8.12leases, manages, operates, or otherwise controls the use of an area in which smoking is
8.13prohibited under sections 144.414 to 144.417, and that knowingly fails to comply with
8.14sections 144.414 to 144.417, is guilty of a petty misdemeanor.
8.15    (b) Any person who smokes in an area where smoking is prohibited or restricted
8.16under sections 144.414 to 144.417 is guilty of a petty misdemeanor.
8.17    (c) A proprietor, person, or entity in charge of a public place, public meeting, place
8.18of employment, or public transportation must not retaliate or take adverse action against
8.19an employee or anyone else who, in good faith, reports a violation of sections 144.414 to
8.20144.417 to the proprietor or person in charge of the public place, public meeting, place of
8.21employment, or public transportation, or to the commissioner of health or other designee
8.22responsible for enforcing sections 144.414 to 144.417.
8.23    (d) No person or employer shall discharge, refuse to hire, penalize, discriminate
8.24against, or in any manner retaliate against any employee, applicant for employment, or
8.25customer because the employee, applicant, or customer exercises any right to a smoke-free
8.26environment provided by sections 144.414 to 144.417 or other law.
8.27    Subd. 3. Injunction. The state commissioner of health, a board of health as defined
8.28in section 145A.02, subdivision 2, or any affected party may institute an action in any
8.29court with jurisdiction to enjoin repeated violations of section 144.416 or 144.4165
8.30sections 144.414 to 144.417.

8.32    The Gambling Control Board, in cooperation with the commissioner of revenue,
8.33shall study the impact of a statewide smoking ban in public places on lawful gambling.
8.34The board shall provide a summary report with recommendations to the governor and the
8.35appropriate committees of the legislature prior to January 31, 2008.

9.2    The Jobs Skills Partnership Board must enable the dislocated worker program under
9.3Minnesota Statutes, section 116L.17, to provide services under that program to employees
9.4of bars, restaurants, and lawful gambling organizations who become unemployed due, in
9.5whole or in part, to the provisions of this act.

9.7    This act shall be referred to as the "Freedom to Breathe Act of 2007."