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Home / Washington Business - February 2006 / Legal Matters: Lighting Up Could Be Costly |
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Legal Matters: Lighting Up Could Be Costly |
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Written On: February 2006 |
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Written By: by Kris Tefft - AWB General Counsel |
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Last December, Washington became the most stringent state in the nation when it comes to banning smoking outside of private homes. Initiative 901, which passed overwhelmingly in November, bans all smoking in public places and places of employment.
Many business owners, thinking the new law applied just to bars, restaurants, bowling alleys and similar establishments, were caught unaware when the law went into effect with new requirements for their businesses.
With some definitions in the law as hazy as the smoke clouds they’re meant to prohibit, questions have arisen. And, there’s talk about changing the law.
Initiative 901 Requirements
I-901 amends Washington's Clean Indoor Air Act to prohibit smoking in all public places and places of employment as well within 25 feet of any entrance, exit, opening window or ventilation intake at a public place or place of employment.
A public place where smoking is prohibited is any part of a building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned by a public or private entity. In addition, public place includes up to 25 feet from the entrance, exit, windows and ventilation intakes of an enclosed area where smoking is prohibited. Unlike previous law, public place now includes bars, bowling alleys, non-tribal casinos and similar businesses. Restaurants can no longer designate smoking sections. A hotel or motel can reserve no more than 25 percent of its rooms for smokers. Private residences are specifically excluded from the definition of public place.
A place of employment is any area under the control of a public or private employer through which an employee is required to pass during the course of employment, including the 25 feet from doors, windows and air intakes. A private residence or home-based business is not a place of employment unless the home-based business is child care, adult care, foster care or a similar social service.
I-901 also requires owners and lessees of public places and places of employment to conspicuously post no-smoking signs at all entrances. Retail stores and service establishments must post signs at the entrances and prominently throughout the inside.
Local law enforcement agencies are charged with enforcing violations of smoking in a public place or place of employment or defacing a non-smoking sign. Local health departments are charged with enforcing violations by owners or lessees of public places or places of employment who do not prohibit smoking as required.
A smoker who violates I-901 can by ticketed by local law enforcement and assessed a civil penalty of up to $100. A proprietor who violates I-901 is first given a warning, and can then be held liable for up to $100 per violation. Each day a violation occurs constitutes a separate violation.
Lastly, a business owner may be able to obtain a waiver of the 25-feet rule for the exterior of their area if they can make a sufficient showing to the local health department that the purposes of the law would be protected by a lesser distance because of the unique set-up or location of the outside area in relation to doors, windows, etc. It will be hard to say what makes a unique circumstance until health departments start acting on these petitions.
Questions Raised
As I-901 went into effect, questions arose about how to comply with the 25-foot rule, especially as it relates to places of employment. Other common questions: What about company cars? What about construction sites? What about partially enclosed parking lots? What about industrial manufacturing so large that designated smoking areas would not threaten non-smokers with second-hand smoke? In some of the gray areas of the law, it is not at all clear what is and isn’t a place of employment, and businesses bear the risk of noncompliance by acquiescing to employee's desires to smoke.
Latest Developments
As a result of the confusion, some lawmakers and businesses are talking about clarifying amendments to the law, specifically to the definition of place of employment. Some small business owners, including restaurateurs and bar owners, are also talking about a waiver for businesses losing a certain percentage of revenue due to the initiative. It takes a two-thirds supermajority of both houses of the Legislature to pass a bill amending an initiative within two years of its passage. It remains to be seen whether enough political will exists to amend I-901.
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