PREFILED JAN 03 2019
REFERENCE TITLE: electronic smoking devices; restrictions; use
State of Arizona
House of Representatives
First Regular Session
Amending section 36‑601.01, Arizona Revised Statutes; relating to public health.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Subject to the requirements of article IV, part 1, section 1, Constitution of Arizona, section 36-601.01, Arizona Revised Statutes, is amended to read:
36-601.01. Smoke-free Arizona act
A. Definitions. The following words and phrases, whenever used in this section, shall be construed as defined in this section:
1. "Electronic smoking device":
(a) means any device that can be used to deliver aerosolized or vaporized nicotine to the person inhaling from the device, including an e‑cigarette, e‑cigar, vape pen or e‑hookah, and any component, part or accessory of the device, whether or not sold separately.
(b) Includes any substance that is intended to be aerosolized or vaporized during the use of the device.
1. 2. "Employee" means any person who performs any service on a full‑time, part-time or contracted basis whether or not the person is denominated an employee, or independent contractor or otherwise and whether or not the person is compensated or is a volunteer.
2. 3. "Employer" means a person, a business, a partnership, an association, the state of Arizona and its political subdivisions, corporations, including a municipal corporations corporation, trust, or non-profit nonprofit entity that employs the services of one or more individual persons.
3. 4. "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by permanent or temporary walls or windows (exclusive of doorways), which that extend from the floor to the ceiling. Enclosed area includes a reasonable distance from any entrances, windows and ventilation systems so that persons entering or leaving the building or facility shall are not be subjected to breathing tobacco smoke and so that tobacco smoke does not enter the building or facility through entrances, windows, ventilation systems or any other means.
4. 5. "Health care facility" means any enclosed area utilized used by any health care institution licensed according to title 36 chapter 4, chapter 6 article 7, of this chapter or chapter 4 or 17 of this title, or any health care professional licensed according to title 32, chapters chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41, or 42.
5. 6. "Person" means an individual, partnership, corporation, limited liability company, entity, association, governmental subdivision or unit of a governmental subdivision, or a public or private organization of any character.
6. 7. "Physically separated" means all space between a floor and ceiling which that is enclosed on all sides by solid walls or windows (exclusive of door or passageway) and independently ventilated from smoke‑free areas, so that air within permitted smoking areas does not drift or get vented into smoke‑free areas.
7. 8. "Places of employment" means an enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including office buildings, work areas, auditoriums, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, stairs, elevators, health care facilities, private offices and vehicles owned and operated by the employer during working hours when the vehicle is occupied by more than one person. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility.
9. "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including airports, banks, bars, common areas of apartment buildings, condominiums or other multifamily housing facilities, educational facilities, entertainment facilities or venues, health care facilities, hotel and motel common areas, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters, and waiting rooms. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.
10. "Retail tobacco store" means a retail store that derives the majority of its sales from tobacco products and accessories.
(a) Means inhaling, exhaling, burning, or carrying or possessing any lighted tobacco product, including cigars, cigarettes, pipe tobacco and any other lighted tobacco product.
(b) Includes the use of an electronic smoking device.
12. "Sports facilities" means enclosed areas of sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, billiard halls, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sporting events.
8. 13. "Veteran and fraternal clubs" means a club as defined in A.R.S. 4‑101(7)(a)(b) or (c) section 4-101, paragraph 7, subdivision (a), (b) or (c).
B. Smoking is prohibited in all public places and places of employment within the state of Arizona, except the following:
1. Private residences, except when used as a licensed child care, adult day care, or health care facility.
2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that if not more than fifty percent of rooms rented to guests in a hotel or motel are so designated.
3. Retail tobacco stores that are physically separated so that smoke from retail tobacco stores does not infiltrate into areas where smoking is prohibited under the provisions of this section.
4. Veterans and fraternal clubs when they are not open to the general public.
5. Smoking when associated with a religious ceremony practiced pursuant to the American Indian religious freedom act of 1978.
6. Outdoor patios so long as tobacco smoke does not enter areas where smoking is prohibited through entrances, windows, ventilation systems, or other means.
7. A theatrical performance upon on a stage or in the course of a film or television production if the smoking is part of the performance or production.
8. Retail stores that sell electronic smoking devices exclusively and that have an independent ventilation system so that the emissions from electronic smoking devices used in the store do not infiltrate into areas where smoking is prohibited under this section.
C. The prohibition on smoking in places of employment shall be communicated to all existing employees by the effective date of this section and to all prospective employees upon on their application for employment.
D. Notwithstanding any other provision of this section, an owner, operator, manager, or other person or entity in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place.
E. Posting of signs and ashtray removal.
1. "No smoking" signs or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted by the owner, operator, manager, or other person in control of that place identifying where smoking is prohibited by this section and where complaints regarding violations may be registered.
2. Every public place and place of employment where smoking is prohibited by this section shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
3. All ashtrays shall be removed from any area where smoking is prohibited by this section by the owner, operator, manager, or other person having control of the area.
F. No An employer may not discharge or retaliate against an employee because that employee exercises any rights afforded by this section or reports or attempts to prosecute a violation of this section.
G. The law This section shall be implemented and enforced by the department of health services as follows:
1. The department shall design and implement a program, including the establishment of an internet website, to educate the public regarding the provisions of this law section.
2. The department shall inform persons who own, manage, operate or otherwise control a public place or place of employment of the requirements of this law section and how to comply with its provisions, including making information available and providing a toll-free telephone number and e-mail address to be used exclusively for this purpose.
3. Any member of the public may report a violation of this law section to the department. The department shall accept oral and written reports of violation and establish an e-mail address(es) and toll‑free telephone number(s) to be used exclusively for the purpose of reporting violations. A person shall is not be required to disclose the person's identity when reporting a violation.
4. If the department has reason to believe a violation of this law section exists, the department may enter upon on and into any public place or place of employment for purposes of determining compliance with this law section. However, the department may inspect public places where food or alcohol is served at any time to determine compliance with this law section.
5. If the department determines that a violation of this law section exists at a public place or place of employment, the department shall issue a notice of violation to the person who owns, manages, operates or otherwise controls the public place or place of employment. The notice shall include the nature of each violation, date and time each violation occurred, and department contact person.
6. The department shall impose a civil penalty on the person in an amount of not less than $100, but not more than $500 for each violation. In considering whether to impose a fine and the amount of the fine, the department may consider whether the person has been cited previously and what efforts the person has taken to prevent or cure the violation, including reporting the violation or taking action under subsection J of this section. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. A person may appeal the assessment of a civil penalty by requesting a hearing. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department.
7. If a civil penalty imposed by this section is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred.
8. The department may apply for injunctive relief to enforce these provisions in the superior court in the county in which the violation occurred. The court may impose appropriate injunctive relief and impose a penalty of not less than $100 but not more than $500 for each violation. Each day that a violation occurs constitutes a separate violation. If the superior court finds the violations are willful wilful or evidence a pattern of noncompliance, the court may impose a fine up to $5000 $5,000 per violation.
9. The department may contract with a third party to determine compliance with this law.
10. The department may delegate to a state agency or political subdivision of this state any functions, powers or duties under this law.
11. The director of the department may promulgate adopt rules for the implementation to implement and enforcement of enforce this law section. The department is exempt from the rulemaking procedures in A.R.S. § title 41, chapter 6 except the department shall publish draft rules and thereafter take public input including hold at least two public hearings prior to implementing the rules. This exemption expires May 1, 2007.
H. Beginning On June 1, 2008 and every other June 1 thereafter each year, the director of the Arizona department of health services shall issue a report analyzing its activities to enforce this law section, including the activities of all of the state agencies or political subdivisions to whom the department has delegated responsibility under this law section.
I. An owner, manager, operator or employee of a place regulated by this law section shall inform any person who is smoking in violation of this law section that smoking is illegal and request that the illegal smoking stop immediately.
J. This law section does not create any new private right of action nor and does it not extinguish any existing common law causes of action.
K. A person who smokes where smoking is prohibited is guilty of a petty offense with a fine of not less than fifty dollars $50 and not more than three hundred dollars $300.
L. Smoke‑free Arizona fund.
1. The smoke-free Arizona fund is established consisting of all revenues deposited in the fund pursuant to §42-3251.02 section 42-3251.02 and interest earned on those monies. The Arizona department of health services shall administer the fund. On notice from the department, the state treasurer shall invest and divest monies in the fund as provided by §35-313 section 35-313, and monies earned from investment shall be credited to the fund.
2. All money monies in the smoke-free Arizona fund shall be used to enforce the provisions of this section, provided however except that if there is money remaining monies remain after the department has met its enforcement obligations, that the remaining money monies shall be deposited in the tobacco products tax fund and used for education programs to reduce and eliminate tobacco use and for no other purpose.
3. Monies in this fund are continuously appropriated, are not subject to further approval, do not revert to the state general fund and are exempt from the provisions of §36-190 section 35-190 relating to the lapsing of appropriations.
M. This section does not prevent a political subdivision of the this state from adopting ordinances or regulations that are more restrictive than this section. nor does This section does not repeal any existing ordinance or regulation that is more restrictive than this section.
N. Tribal sovereignty — this section has no application on Indian reservations as defined in ARS 42-3301(2) section 42-3301.
Sec. 2. Requirements for enactment; three-fourths vote
Pursuant to article IV, part 1, section 1, Constitution of Arizona, section 36-601.01, Arizona Revised Statutes, as amended by this act, is effective only on the affirmative vote of at least three-fourths of the members of each house of the legislature.