2006 Regular Session
To: Public Health and Welfare
By: Senator(s) Dawkins
AN ACT TO CREATE THE MISSISSIPPI SMOKE FREE FAMILIES ACT; TO PROVIDE DEFINITIONS OF CERTAIN TERMS; TO PROHIBIT SMOKING IN ENCLOSED PUBLIC PLACES IN THE STATE OF MISSISSIPPI; TO PROVIDE THAT EMPLOYERS ARE RESPONSIBLE FOR PROVIDING A SMOKE-FREE WORKPLACE FOR ALL EMPLOYEES AND TO PRESCRIBE CERTAIN STANDARDS FOR SMOKING BREAK ROOMS; TO SPECIFY THE AREAS WHERE SMOKING IS NOT REGULATED; TO PROVIDE FOR THE POSTING OF NO SMOKING SIGNS; TO DIRECT THE STATE BOARD OF HEALTH TO ADOPT REGULATIONS AND PENALTIES REGARDING VIOLATIONS OF THIS ACT; TO AMEND SECTION 29-5-161, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THERE SHALL BE NO DESIGNATED SMOKING AREAS IN STATE OFFICE BUILDINGS AND TO PROVIDE THAT SMOKING PROHIBITIONS APPLY TO ANY GOVERNMENT BUILDING; TO AMEND SECTION 97-32-27, MISSISSIPPI CODE OF 1972, TO PROHIBIT SMOKING IN ALL PUBLIC AND PRIVATE SCHOOL BUILDINGS AND FACILITIES, AND TO PROHIBIT SMOKING IN ALL PUBLIC AND PRIVATE UNIVERSITY AND COLLEGE BUILDINGS AND FACILITIES IN MISSISSIPPI; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Smoke Free Families Act."
SECTION 2. The following words and phrases shall have the meanings ascribed in this section, unless the context clearly indicates otherwise:
(a) "Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by guests on the premises in which the serving of food is only incidental to the consumption of those beverages. For the purposes of this paragraph, the term "bar" does not include any establishment where cigarette smoke can filter into any area where smoking is prohibited through a passageway, ventilation system or any other means.
(b) "Business" means any sole proprietorship, partnership, joint venture, corporation or other legal entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.
(c) "Employee" means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit and any person who volunteers his or her services.
(d) "Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, that employs the services of one or more individual persons.
(e) "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows, excluding doors or passageways, that extend from the floor to the ceiling, including all space therein screened by partitions that do not extend to the ceiling or are not solid, office landscaping or similar structures.
(f) "Place of employment" means any enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a child care facility, as defined in Section 43-20-5, adult day care or health care facility that is licensed or regulated by the State Department of Health.
(g) "Public conveyance" means buses, taxis, trains, trolleys, boats and other means of public transit when used for public conveyance.
(h) "Public meeting" means all meetings open to the public unless held in a private residence.
(i) "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, health facilities, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a "public place."
(j) "Restaurant" means any coffee shop, cafeteria, sandwich stand, or any other eating establishment that gives or offers for sale food to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities, except that the term "restaurant" does not include a cocktail lounge or tavern if the cocktail lounge or tavern is a "bar" as defined in paragraph (a) of this section.
(k) "Retail tobacco store" means a retail store utilized primarily for the on-site sale of tobacco products and accessories, including the rental of on-site humidors and in which the sale of other products is merely incidental.
(l) "Service line" means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money.
(m) "Smoking" means inhaling, exhaling, burning, carrying or otherwise possessing any lighted cigarette, cigar, pipe or any other object or device of any form that contains lighted tobacco or any other smoking product.
(n) "Sports arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in or witness physical exercise, athletic competition or other sports entertainment events.
SECTION 3. (1) Smoking is prohibited in all enclosed public places in the State of Mississippi, including, but not limited to, the following places:
(b) Restrooms, lobbies, reception areas, hallways and any other common-use areas;
(c) Buses, taxicabs and other means of public conveyance;
(d) Service lines;
(e) Retail stores;
(f) All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, banks, laundromats, hotels and motels;
(h) Public areas of aquariums, galleries, libraries and museums when open to the public;
(i) Any facility that is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance;
(j) Sports arenas and convention centers;
(k) Waiting rooms, hallways, wards and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices, dentists' offices, personal care homes, hospices and birthing facilities;
(l) Indoor lobbies, hallways and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes and other multiple-unit residential facilities;
(m) Polling places during the days and hours of operation.
(2) Notwithstanding any other provision of this section to the contrary, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility is a nonsmoking establishment.
SECTION 4. (1) Each employer with five (5) or more employees shall prohibit smoking in any place of employment under said employer's control, except that an employer may designate one or more smoking break rooms pursuant to this section. It is the responsibility of employers with five (5) or more full-time employees to provide a smoke-free place of employment for all employees.
(2) Not later than six (6) months after the effective date of this act, each employer having an enclosed place of employment shall adopt, implement, make known and maintain a written smoking policy that contains the following requirements: Smoking is prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles and all other enclosed facilities.
(3) Each smoking room designated by an employer pursuant to this section shall meet the following requirements: (a) air from the smoking room shall be exhausted directly to the outside by an exhaust fan, and no air from such room shall be recirculated to other parts of the building; (b) the employer shall comply with any ventilation standard adopted by (i) the United States Secretary of Labor under the authority of the Occupational Safety and Health Act of 1970, as from time to time amended, or (ii) the federal Environmental Protection Agency; (c) such room shall be located in a nonwork area, where no employee, as part of his or her work responsibilities, is required to enter, such work responsibilities shall not include any custodial or maintenance work carried out in the smoking room when it is unoccupied; and (d) such room shall be for the use of employees only.
(4) Each employer that provides a smoking room pursuant to this section shall provide sufficient smoking break rooms for nonsmoking employees.
(5) Nothing in this section may be construed to prohibit an employer from designating an entire business facility as a nonsmoking area.
(6) The State Department of Health may exempt any employer from the provisions of this section if he finds that (a) the employer made a good faith effort to comply with the provisions of this section, and (b) any further requirement to so comply would constitute an unreasonable financial burden on the employer.
SECTION 5. Smoking shall not occur within ten (10) feet of any entrance to a building or passageway outside any enclosed area.
SECTION 6. (1) Notwithstanding any other provision of this act to the contrary, the following areas shall not be subject to the smoking restrictions of this act:
(b) Private residences, except when used as a licensed child care facility;
(c) Hotel and motel rooms;
(d) Retail tobacco stores;
(e) Restaurants, hotel and motel conference or meeting rooms, and public and private assembly rooms while these places are being used for private functions;
(f) Any facility operated by an entity licensed by the Mississippi Gaming Commission, except for restaurants located in such facilities which shall be subject to the smoking restrictions of this act; and
(g) All public schools and campuses within the State of Mississippi regulated under Section 97-32-25 et seq.
(2) Notwithstanding any other provision of this section to the contrary, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment is a nonsmoking establishment.
SECTION 7. (1) Every public place where smoking is prohibited by this act shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
(2) All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited by this act by the owner, operator, manager or other person having control of that area.
SECTION 8. The State Board of Health shall adopt and promulgate regulations and penalties regarding the violations of this act not later than ninety (90) days after the effective date of this act.
SECTION 9. A person or employer shall not discharge, refuse to hire 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 afforded by this act.
SECTION 10. This act shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws or to prohibit any municipality or county from adopting additional ordinances with regard to the use of smoking in public places.
SECTION 11. This act shall not be construed as amending or repealing Section 97-35-1(4).
SECTION 12. Section 29-5-161, Mississippi Code of 1972, is amended as follows:
29-5-161. (1) As used in this section:
(a) "Smoke" or "smoking" means inhaling, exhaling, burning, carrying or otherwise possessing any lighted cigarette, cigar, pipe or any other object or device of any form that contains lighted tobacco or any other smoking product.
(b) "Government building" means the New State Capitol Building, the Woolfolk State Office Building, the Carroll Gartin Justice Building, the Walter Sillers Office Building, the Heber Ladner Building, the Department of Transportation Building, the Robert E. Lee Office Building, the Robert G. Clark, Jr., Building, the State Board of Health Building, the Public Employees' Retirement System Building, the Central High Building, the Court of Appeals Building, the War Veterans' Memorial Building, the State Archives Building, the Ike Sanford Veterans Affairs Building, the Old State Capitol Building, the Burroughs Building, the Mayfair Building, 101 Capitol Centre and any other facility in the state that is owned or leased by the State of Mississippi or any agency, department or institution of the state and that is used for housing state employees during the time of performance of their regular duties for the state; any building owned, rented, leased, occupied or operated by the state, including the legislative, executive and judicial branches of state government; any county, municipality or any other political subdivision of the state; any public authority, commission, agency or public benefit corporation; or any other separate corporate instrumentality or unit of state or local government. If only part of a facility is leased by the state or an agency, department or institution of the state, or any county, municipality or other political subdivision of the state, only the leased part of the facility will be considered to be a government building for the purposes of this definition.
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(2) No person shall smoke in any government building * * *.
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(3) The person, agency or entity having jurisdiction or supervision over a government building shall not allow smoking in the government building, * * * and shall use reasonable efforts to prevent smoking in the government building, * * * including, but not limited to, the following:
(a) Posting appropriate signs informing public employees, invitees, guests and other persons that smoking is prohibited in the government building * * *.
(b) Securing the removal of persons who smoke in the government building * * *.
(4) This section expressly preempts to the state the regulation of smoking in government buildings and supersedes any municipal or county ordinance on the subject.
SECTION 13. Section 97-32-27, Mississippi Code of 1972, is amended as follows:
97-32-27. (1) "Adult" means any natural person at least eighteen (18) years old.
(2) "Minor" means any natural person under the age of eighteen (18) years.
(3) "Person" means any natural person.
(4) "Tobacco product" means any substance that contains tobacco including, but not limited to, cigarettes, cigars, pipes, snuff, smoking tobacco or smokeless tobacco.
(5) "Educational property" means any public or private school building or bus, public school campus, grounds, recreational area, athletic field or other property owned, used or operated by any local school board, school or directors for the administration of any public or private educational institution or during a school-related activity; provided, however, that the term "educational property" shall not include any sixteenth section school land or lieu land on which is not located a public school building, public school campus, public school recreational area or public school athletic field. Educational property shall * * * include property owned or operated by the state institutions of higher learning, the public community and junior colleges, or vocational-technical complexes and privately-owned colleges and universities.
SECTION 14. This act shall take effect and be in force from and after July 1, 2006.