SENATE, No. 376

STATE OF NEW JERSEY

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Senator MacINNES

An Act concerning smoking in indoor public places, supplementing chapter 3D of Title 26 of the Revised Statutes and repealing P.L.1981, c.318, P.L.1981, c.319, P.L.1981, c.320, P.L.1985, c.184, P.L.1985, c.186, P.L.1985, c.318, P.L.1985, c.381 and P.L.1985, c.185.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. This act shall be known and may be cited as the "Clean Indoor Air Act."

    2. The Legislature finds and declares that: Tobacco is the leading cause of preventable disease and death in this State and nation, and tobacco smoke constitutes a substantial health hazard to the nonsmoking majority of the public; the separation of smoking and nonsmoking areas in indoor public places does not eliminate the hazard to nonsmokers if these areas share a common ventilation system; and, therefore, subject to certain specified exceptions, it is clearly in the public interest to prohibit smoking in the common areas of all enclosed indoor places of public access.

    3. As used in this act:

    "Indoor public place" means a structurally enclosed place of business, commerce or other service-related activity, whether publicly or privately owned or operated on a for-profit or nonprofit basis, which is generally accessible to the public, including, but not limited to: a commercial or other office building; office or building owned, leased or rented by the State, or a county or municipal government; public and nonpublic elementary or secondary school building; board of education building; theater or concert hall; public library; museum or art gallery; restaurant or other establishment where the principal business is the sale of food for consumption on the premises, including the bar area of the establishment; garage or parking facility; any public conveyance operated on land or water, or in the air, and passenger waiting rooms and platform areas in any stations or terminals thereof; health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.); patient waiting room of the office of a health care provider licensed pursuant to Title 45 of the Revised Statutes; child care center licensed pursuant to the "Child Care Center Licensing Act," P.L.1983, c.492 (C.30:5B-1 et seq.); race track facility; casino licensed under the "Casino Control Act," P.L.1977, c.110 (C.5:12-1 et seq.); facility used for the holding of sporting events; ambulatory recreational facility; shopping mall or retail store; hotel, motel or other lodging establishment; apartment building lobby or other public area in an otherwise private building; or a passenger elevator in a building other than a single family dwelling.

    "Smoking" means the possession of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.

    4. a. Smoking is prohibited in an indoor public place, except as otherwise provided in this section.

    b. Nothing in this act shall be construed to apply to a place or building owned and operated by a social, fraternal or religious organization when used by the members of the organization, their guests or families, or when it is rented or leased for a privately sponsored function from which the public is excluded or for which arrangements are under the control of the sponsor of the function, except that this subsection shall not apply to a nonpublic elementary or secondary school.

    c. The person having control of an indoor public place may permit smoking in one or more designated areas as long as the area:

    (1) is not generally accessible to the public;

    (2) is enclosed by solid walls or windows, a ceiling and a solid door;

    (3) has a ventilation system which is separately exhausted from the nonsmoking areas of the indoor public place so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas; and

    (4) in the case of a workplace, is not an area in which an employee is required to work.

    d. In the case of a public or nonpublic elementary or secondary school or a theater or concert hall, the appropriate governing body, board or person responsible for or having control of the administration of the school, theater or concert hall may permit smoking as part of a classroom instruction or a theatrical production.

    5. a. The provisions of this act shall not apply to a tavern, night club or cabaret which is not located within a building in which there is another business or service-related activity which is covered by the provisions of this act, or, when located in such a building, is not internally accessible therefrom.

    As used in this subsection, "tavern, night club or cabaret" means an indoor area open to the public that is primarily devoted to the sale and service of alcoholic beverages for on-premises consumption, dancing or entertainment, and where total annual gross sales derived from the service of food, if any, are less than the aggregate amount of those derived from the sale and service of alcoholic beverages and from dancing and entertainment.

    b. The provisions of this act shall not apply to a tobacconist establishment which engages primarily in the sale of tobacco and tobacco-related products and accessories.

    c. The provisions of this act shall not apply to a restaurant or other eating establishment which serves cigars to its customers as part of its fare, except that the establishment must have an operating humidor on its premises.

    6. The person having control of a hotel, motel or other lodging establishment may permit smoking in one or more rooms, as well as in a room rented or leased for a privately sponsored social function, which is designated for that purpose, if the room has a ventilation system which is separately exhausted from the nonsmoking areas so that air from the smoking room is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

    7. The person having control of an indoor public place shall place in every public entrance to the indoor public place a sign, which shall be located so as to be clearly visible to the public and shall contain letters or a symbol which contrast in color with the sign, indicating that smoking is prohibited therein, except in such designated areas as provided pursuant to this act. The sign shall also indicate that violators are subject to a fine. The person having control of the indoor public place shall post a sign stating "Smoking Permitted" in letters at least one inch in height or marked by the international symbol for "Smoking Permitted" in those areas where smoking is permitted.

    8. The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in an indoor public place, except where smoking is prohibited by municipal ordinance under authority of R.S.40:48-1 or 40:48-2, or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire, and except for those provisions of a municipal ordinance which provide restrictions on smoking equivalent to, or greater than, those provided under this act.

    9. a. The person having control of an indoor public place shall order any person smoking in violation of this act to comply with the provisions of this act. A person, after being so ordered, who smokes in violation of this act is subject to a fine not to exceed $100 for each offense.

    b. The Department of Health or the local board of health or the board, body or officers exercising the functions of the local board of health according to law, upon written complaint or having reason to suspect that an indoor public place covered by the provisions of this act is or may be in violation of the provisions of this act shall, by written notification, advise the person having control of the place accordingly and order appropriate action to be taken. A person receiving that notice who fails or refuses to comply with the order is subject to a fine not to exceed $25 for the first offense, $100 for the second offense and $200 for each subsequent offense. In addition to the penalty provided herein, the court may order immediate compliance with the provisions of this act.

    c. A penalty recovered under the provisions of this act shall be recovered by and in the name of the Commissioner of Health or by and in the name of the local board of health. When the plaintiff is the Commissioner of Health, the penalty recovered shall be paid by the commissioner into the treasury of the State. When the plaintiff is a local board of health, the penalty recovered shall be paid by the local board into the treasury of the municipality where the violation occurred.

    d. A municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of any provision of this act if the violation has occurred within the territorial jurisdiction of the court. The proceedings shall be summary and in accordance with "the penalty enforcement law," N.J.S. 2A:58-1 et seq. Process shall be in the nature of a summons or warrant and shall issue only at the suit of the Commissioner of Health, or the local board of health, as the case may be, as plaintiff.

    10. The Commissioner of Health, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of this act.

    11. The following are repealed:

    P.L.1981, c.318 (C.26:3D-1 et seq.);

    P.L.1981, c.319 (C.26:3D-7 et seq.);

    P.L.1981, c.320 (C.26:3D-15 et seq.);

    P.L.1985, c.184 (C.26:3D-23 et seq.);

    P.L.1985, c.186 (C.26:3D-32 et seq.);

    P.L.1985, c.318 (C.26:3D-38 et seq.);

    P.L.1985, c.381 (C.26:3D-46 et seq.); and

    P.L.1985, c.185 (C.26:3E-7 et seq.).

    12. a. The provisions of this act shall take effect on the 30th day after enactment with respect to: public conveyances operated in the air and airport passenger waiting rooms, shopping malls; lobbies in hotels, motels and other lodging establishments; licensed child care centers; offices or buildings owned, leased or rented by the State or a county or municipal government; public and nonpublic elementary or secondary school buildings; and board of education buildings.

    b. The provisions of this act shall take effect with respect to all other indoor public places on the first day of the 10th month after enactment.

STATEMENT

    This bill would prohibit smoking in the common areas of indoor public places throughout the State; however, smoking would be permitted in certain physically separated areas.

    Specifically, this bill defines "indoor public place" to mean a structurally enclosed place of business, commerce or other service-related activity, whether publicly or privately owned or operated on a for-profit or nonprofit basis, which is generally accessible to the public. The provisions of the bill would apply, for example, to all retail establishments, government offices, schools, sporting arenas, casinos, restaurants, banks, public libraries, museums, public conveyances, hotels and motels, child care centers, health care facilities, waiting rooms in physicians' and other health care providers' offices, recreational facilities and elevators in public buildings.

    The bill would exempt from its restrictions on smoking, a place or building owned and operated by a social, fraternal or religious organization when used by the members of the organization, their guests or families, or when it is rented or leased for private functions from which the public is excluded or for which arrangements are under the control of the sponsor of the function.

    Under this bill, the person having control of an indoor public place may permit smoking in one or more designated areas as long as the area:

      is not generally accessible to the public;

      is enclosed by solid walls and windows, a ceiling and a solid floor-to-ceiling door;

      has a ventilation system which is separately exhausted from the nonsmoking areas of the indoor public place; and

      in the case of a workplace, is not an area in which an employee is required to work.

    Also, in the case of a public or nonpublic elementary or secondary school or a theater or concert hall, the appropriate governing body, board or person responsible for or having control of the administration of the school, theater or concert hall may permit smoking as part of a classroom instruction or a theatrical production.

    In addition, the bill exempts a tavern, night club or cabaret, a tobacconist establishment, and a restaurant which serves cigars to its customers as part of its fare, from its provisions, and also provides that a hotel, motel or other lodging establishment may permit smoking in one or more designated rooms, and in a room rented or leased for a privately sponsored social function, if the room is ventilated separately from the nonsmoking areas.

    This bill obviates the existing statutes governing smoking in passenger elevators (P.L.1981, c.318; C.26:3D-1 et seq.), health care facilities and physician's offices (P.L.1981, c.319; C.26:3D-7 et seq.), educational institutions (P.L.1981, c.320; C.26:3D-15 et seq.), places of employment (P.L.1985, c.184; C.26:3D-23 et seq.), food and marketing stores (P.L.1985, c.186; C.26:3D-32 et seq.), indoor public places (P.L.1985, c.318; C.26:3D-38 et seq.), government buildings (P.L.1985, c.381; C.26:3D-46 et seq.) and restaurants (P.L.1985, c.185; C.26:3E-7 et seq.). A 1989 report by the Commission on Smoking OR Health appointed by the Department of Health found that these laws are "grossly inadequate and extraordinarily ambiguous" and "do not protect the public health." These statutes are repealed by this bill.

Designated the “Clean Indoor Air Act.”