| Proposed Smoking Changes At Bottom Of Story
New non-smoking regulations are coming to nearly all enclosed public places within Calhoun, Pleasants, Ritchie, Roane, Wirt and Wood Counties, according to the Mid-Ohio Valley Health Department.
The new regulation will mostly affect restaurants that have been allowed to have designated smoking areas. Also, the regulation calls for no smoking within 15 feet of the doorway of any commercial establishment or public building.
Other outside areas are also restricted.
The department's Board of Health, with representatives from all seven counties and the City of Parkersburg, are moving the changes forward, with the proposal being open to public comment sometime after the first of the year.
The changes will likely go into effect within months, according to Carrie Brainard, a tobacco cessation specialist with the department.
The health department has enforcement power, with the court's saying such power is legal.
Braxton County have mounted a last-minute effort to stop a smoking ban that's set to go into effect on New Year's Day.
Last week a pro-rights smoking group gave the County Commission petitions with more than a thousand signatures.
They want the commission to override the health department, but the commission says it lacks the legal power to do that.
Lawsuits were filed over smoking bans in two of the state's largest counties, Cabell and Kanawha, but the state Supreme Court upheld them in December 2003.
PROPOSED SMOKING REGULATION
Mid-Ohio Valley Health Department
TITLE
This Regulation shall be known as the Mid Ohio Valley Health Department Clean Indoor Air Regulation covering the counties of Calhoun, Pleasants, Ritchie, Roane, Wirt and Wood.
FINDINGS and PURPOSE
The United States Surgeon General has determined that involuntary inhalation of tobacco smoke is (a) a cause of numerous diseases in health of nonsmokers' and (b) a major contributor to indoor air pollution; and (c) that children, elderly people, and individuals with cardiovascular and/or respiratory diseases are at special risk.
The Environmental Protection Agency (EPA) has classified secondhand smoke as a Group A Carcinogen, known to cause cancer in humans. Accordingly, the Mid Ohio Valley Board of Health finds and declares that the purpose of this Regulation is to (1) protect the public health and welfare by prohibiting smoking in enclosed public places and by regulating smoking in places of employment and (2) recognize that where the need to breathe smoke-free air conflicts with the desire to smoke, the need to breathe smoke-free air shall have priority.
In attempting to minimize the effects of tobacco smoke on the general public in enclosed public places, the regulations of [boards of health] address a serious health issue which the Legislature has recognized.... Based upon the foregoing observations, we find that clean indoor air regulations of local boards of health that place restrictions on smoking in enclosed public places (1) are consistent with the findings of the Legislature "that smoking may cause lung cancer, heart disease, emphysema and other serious health problems," (2) advance the legislatively prescribed public policy "to provide the state with a citizenry free from the use of tobacco," and (3) fall within the bounds of authority granted by the Legislature to such boards....." Excerpted from the December 2, 2003 WV Supreme Court Decision #31120.
DEFINITIONS
The following words and phrases, whenever used in this regulation, shall be construed as defined in this section.
A. "Attached Bar" means an area of a restaurant
B. "Business" means any entity formed for profit-making purposes.
C "Employee" means any person employed for direct and indirect monetary wages or anything of
value, or any person who volunteers for a non-profit entity.
D. "Employer" means any entity that employs the paid or volunteer services of one or more persons.
E. "Enclosed Area" means all space between a floor and ceiling which is enclosed in all sides by
solid walls or windows including doors or passage ways. The "enclosed" area extends from the
floor to the ceiling, including all space therein screened by partitions which do not extend to the
ceiling or are not solid, "office landscaping: or similar structures.
F. "Free Standing Bar" means an area or establishment which is primarily devoted to the serving of
alcoholic beverages for consumption by guests on the premises and in which the serving of food
is only incidental to the consumption of such beverages. (For the purposes of this regulation a "free standing bar" means an establishment whose gross sales of alcoholic beverages are 80% or greater of their retail gross sales.) A Free Standing Bar that permits smoking shall prohibit the entry of persons under the age of eighteen.
G. Free Standing Video Lottery Room-means a room that is devoted to the placement of video
lottery machines licensed by the WV Gaming Commission. It has solid walls or windows,
enclosed on all sides which is served by a separate ventilation system and does not allow for the
infiltration of secondhand smoke into any non smoking area. The serving of full meals is
prohibited.
H. "Grocery Store" means any supermarket, convenience store, and other retail food production and
marketing establishments.
I. "Non-Profit Entity" means any entity whose operations are not committed to private financial gain.
A public agency is not a "non-profit entity" within the meaning of this section.
J. "Place of Employment" means any enclosed area under the control of a public or private
employer whose employees normally frequent this area during the course of employment.
A private residence is not a "place of employment" unless it is used as a child care or
health care facility.
K. "Public Place" means any enclosed areas to which the public is invited or in which the public is
permitted. A private residence is not a "public place."
L. "Restaurant" means any establishment that serves food to the public, guests, patrons, and
employees as well as kitchens in which food is prepared on the premises for serving elsewhere,
including catering facilities.
M. "Retail Store" means any establishment that sells goods or services directly to members of the
general public including, but not limited to, specialty stores, department stores, pharmacies,
banks, automobile dealerships, showrooms, professional offices, service stations, repair or
maintenance stores, barber or beauty shops, cleaners, and laundromats.
N. "Retail Tobacco Store" means a retail store utilized primarily for the sale of tobacco products and
in which the sale of other products is merely incidental. It is a facility that does not possess a food
service permit.
O. "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, plant or
other smoking equipment in any manner or in any form.
REGULATION OF SMOKING IN ENCLOSED PUBLIC PLACES
A. Smoking shall be prohibited in all enclosed public places within Calhoun, Pleasants, Ritchie, Roane, Wirt and Wood Counties, including, but not limited to the following places:
1. Grocery Stores and Convenience Stores.
2. Retail Stores
3. Elevators.
4. Restrooms
5. All means of public transit, including ticket, boarding and waiting areas.
6. All waiting areas and lobbies in all business and non-profit entities.
7. Restaurants.
8. Every room, chamber, place of meeting or public assembly, including school buildings
under the control of any board, council, commission, committee, including joint committees,
or any subdivision of the State during such time as a public meeting is in progress.
9. All patient rooms, waiting rooms, and other public areas in health care facilities, including
but not limited to hospitals, clinics, pharmacies, primary care facilities, physical therapy
facilities, doctor's offices, dentist's offices, and optometrist's offices.
10. Enclosed shopping malls.
11. Bowling Alleys.
12. Polling Places.
13. Fire Halls.
14. Child Care and Adult Day Care Facilities.
15. Private Schools
B. Notwithstanding any other provision of this section any person who controls any establishment or
facility described in this section may declare that entire establishment or facility as non-smoking.
C. In any dispute arising under this Regulation, the concerns of the non-smoker shall be given
precedence.
REGULATIONS OF SMOKING IN ENCLOSED PLACE OF EMPLOYMENT
A. It shall be the responsibility of the employers to provide a smoke-free workplace for all employees.
B. Within 90 days of the effective date of this article, each employer having an enclosed place of
Employment located within Calhoun, Pleasants, Ritchie, Roane, Wirt and Wood Counties shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements:
Smoking shall be prohibited in enclosed facilities within a place of employment. This
includes common work areas, auditoriums, classrooms, conference and meeting
rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee
lounges, stairs, restrooms, and all other enclosed facilities. Smoking shall be
prohibited in vehicles owed or leased by the employer.
C. The smoking policy shall be communicated to all employees within three (3) weeks of its adoption.
D. All employers shall supply a written copy of the smoking policy upon request to any existing or
prospective employee.
REASONABLE DISTANCE
Designated smoking areas shall occur at a reasonable distance of 15 feet or more outside any entrance, exit, or ventilation units of any buildings or enclosed area where smoking is prohibited to insure that tobacco smoke does not enter the area through entrances, windows, ventilation systems or any other means. This shall include fresh air intake area for the heating, ventilation, air-conditioning (HVAC) system of any building. Â
WHERE SMOKING IS NOT REGULATED
A. Not withstanding any other provisions of this Regulation to the contrary, the following areas shall
not be subject to the smoking restrictions of this Regulation:
1. Free Standing Bars.
2. Free Standing Video Lottery Rooms
3. Private residences, except when used as a child care or health care facility.
4. Designated Hotel and Motel rooms rented to guests.
5. Bingo Halls
6. Retail tobacco stores, which do not possess a food service permit.
7. The conference or meeting rooms or public and private assembly rooms of hotels,
motels and fraternal organizations while these places are being used for private functions.
B. Not withstanding any other provisions of this section, any person who controls any establishment
described in this section may declare that establishment as a non-smoking facility.
POSTING OF SIGNS
A. Because rules regulating smoking are primarily self-enforcing, their success depends heavily upon
adequate signs.
B. "No Smoking" signs shall be conspicuously posted in every building or other place where smoking
is controlled by this regulation, including restrooms and elevators, by the owner, operator,
manager or other person having control of such building or other place.
C. Every establishment where smoking is controlled by this regulation shall have posted at each
entrance a conspicuous sign stating that smoking is prohibited.
D. Facilities that permit smoking must post signs advising patrons of secondhand smoke hazards,
and that minors are prohibited.
E. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is
prohibited by this regulation by the owner, operator, manager, or other person having control of
such area.
ENFORCEMENT
A. Although smoking regulations are primarily self-regulating through social pressure, enforcement of
this Regulation shall be the ultimate responsibility of the Mid Ohio Valley Health Department.
B. Any owner, operator, manager or other person of any establishment regulated by this Regulation
shall inform persons violating this Regulation of the appropriate provisions thereof.
NON-RETALIATION
No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee, applicant for employment or member of the public because such person exercises any rights afforded by this Regulation.
OTHER APPLICABLE LAWS
This Regulation shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws, ordinances, or regulations.
SEVERABILITY
If any portion of the Regulation or the application thereof shall be held to be invalid, the other provisions of the Regulation shall not be affected, and to this end the provisions of this Regulation are declared to be severable.
VIOLATIONS AND PENALTIES
A. Willful violation of this Clean Indoor Air Regulation is an unlawful act.
Any person who owns, manages, operates or otherwise controls the use of a premise shall commit a willful violation if they:
(1) Knowingly permit smoking on a premises subject to their control in an area where
smoking is prohibited by the provisions of this clean indoor air regulation, or
(2) Knowingly violate any other provision of this clean indoor air regulation.
Any person who smokes or possesses a burning cigarette, cigar or pipe tobacco in an area of a premise where smoking is prohibited with knowledge that he or she is in a non-smoking area
commits a willful violation of this clean indoor air regulation.
B Penalties:
The Board of Health may, at its option, seek civil relief and/or file a misdemeanor complaint under
W.VA. Code 16-2-15 against any person who willfully violates this clean indoor air regulation.
Enforcement though civil process, includes, but is not limited to a petition for injunctive relief.
Any person who willfully violates this clean indoor air regulation, may be charged with a misdemeanor under W.Va. Code 16-2-15 and, upon conviction, be subject to a monetary fine. At the time of the adoption of this Clean Indoor Air Regulation, West Virginia Code 16-2-15 provided as follows.
Chapter 16-2-15. Obstructing local health officers and others in the
enforcement of public health laws; other violations, penalties.
Any person who willfully obstructs any local health officer, public health nurse, sanitarian or any other person charged with the enforcement of any public health law, in the performance of that person's legal duties in enforcing the law, is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than fifty dollars and not more than five hundred dollars.
Any person who willfully violates any of the provisions of this article, or any of the rules or orders adopted or issued pursuant to the provisions, for which a penalty is not otherwise provided, is guilty of a Misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars and Not more than one thousand dollars.
Magistrates have concurrent jurisdiction with the circuit courts of this state for violations of
Provisions of this article.
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