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BROOKE COUNTY CLEAN INDOOR AIR REGULATION (Effective September 25, 2005)

Section 1000. TITLE This Regulation shall be known as the Brooke County Clean Indoor Air Regulation. Section 1001. AUTHORITY This Clean Indoor Air Regulation is adopted in accordance with the authority contained in West Virginia Code §16211 et seq. Section 1002. 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

The Environmental Protection Agency (EPA) has classified secondhand smoke as a Group A Carcinogen, known to cause cancer in humans. Accordingly, the Brooke County 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 smokefree air conflicts with the desire to smoke, the need to breathe smokefree 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.

This regulation is formed in accordance to the Brooke County Health Department Mission Statement which says: The mission of Brooke County Health Department is to enhance the health of area residents through providing effective public health services for the prevention and control of disease. This mission is accomplished through conducting community needs assessments and providing ongoing education, environmental and disease surveillance, and preparedness to manage public health threats. Section 1003. DEFINITIONS The following words and phrases, whenever used in this regulation, shall be construed as defined in this section.

A. “Attached Bar” means area of restaurant that is designated for serving of legal beverages.

B. “Business” means any entity formed for profitmaking purposes.

C. “Employee” means any person employed for direct and indirect monetary wages or anything of value, or any person who volunteers for a nonprofit 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 passageways. 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 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. These places serve only ready to eat (RTE) or commercially processed items which require no additional processing and may be heated, served cold, or at room temperature. It does not include any establishment that allows for smoke to filter into nonsmoking areas. This is a facility that is separated from a nonsmoking facility. 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 solely 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 nonsmoking area. These establishments may only serve Ready to Eat (RTE) or commercially processed items. A Free Standing Video Lottery Room that permits smoking shall prohibit the entry of persons under the age of eighteen. H. “Grocery Store” means any supermarket, convenience store, and other retail food production and marketing establishments.

I. “NonProfit Entity” means any entity whose operations are not committed to private financial gain. A public agency is not a “nonprofit entity” within the meaning of this section.

JI. “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 coffee shop, cafeteria, sandwich stand, private and public school cafeteria any other eating establishment which 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” shall not include a cocktail lounge or tavern which qualifies as a “Free Standing Bar”.

N. “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.

O. “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. (No food)

P. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, plant or other smoking equipment in any manner or in any form.

Q. “Gaming and Entertainment Establishment” means

(1) a facility that is licensed as a racetrack by the State of West Virginia and offers the general public opportunities to place wagers on live or simulcast horse or dog races and participate in West Virginia video lottery for entertainment purposes, as well as, participate in other entertainment activities that are secondary to the racing and gaming activities; and

(2) any facility, including, but not limited to, a hotel, comprising or adjoining a facility described in

(1) hereof. A Gaming and Entertainment Establishment that permits smoking shall prohibit the entry of persons under the age of eighteen. A Gaming and Entertainment Establishment shall include any establishment which possesses a license from the Alcohol and Beverage Control Commission (ABCC), but is primarily in business for the purpose of being a limited video lottery retailer, and which derives the majority of its income from the proceeds of limited video lottery terminals. Section 1004. REGULATION OF SMOKING IN ENCLOSED PUBLIC PLACES

A. Smoking shall be prohibited in all enclosed public places within Brooke County, 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 nonprofit entities.

7. Restaurants, except that they may designate a contiguous area up to 25% of the seating capacity of the restaurant as a smoking area.

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. Public and 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 nonsmoking. C. In any dispute arising under this Regulation, the concerns of the nonsmoker shall be given precedence. Section 1005. REGULATIONS OF SMOKING IN ENCLOSED PLACE OF EMPLOYMENT

A. It shall be the responsibility of the employers to provide a smokefree workplace for employees.

B. Within 90 days of the effective date of this article, each employer having an enclosed place of Employment located within Brooke County 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 owned 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. Section 1006. 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 including Free Standing Video Lottery Rooms. 2. Private residences, except when used as a childcare or health care facility. 3. Designated Hotel and Motel rooms rented to guests. 4. Bingo Halls allowed under WV Code Section §4520281, as stipulated by the WV State Supreme Court of Appeals, December 2 2003. 5. Retail tobacco stores, which do not possess a food service permit. 6. 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. 7. Patients residing in certain personal care homes existing prior to September 4, 2003, which under 64 WV CSR §148.12.3, may not terminate smoking privileges of PreSeptember 4, 2003 residents who smoke, but shall have nonsmoking areas and adopt nosmoking policies as defined by residential operations administrators, subject to said grand fathered provision as stipulated by the WV State Supreme Court of Appeals, December 2, 2003. Such an area shall not serve as an employee break room and will be limited to residents within the facility use only. 8. Gaming and Entertainment Establishments. 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 nonsmoking facility. Section 1007. POSTING OF SIGNS

A. Because rules regulating smoking are primarily selfenforcing, 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.

F. Facilities that permit smoking must post signs advising patrons of secondhand smoke hazards, and that minors are prohibited in smoking areas.

This posting shall be conspicuously placed. This advisory shall include, but is not limited to, the following: HEALTH WARNING SMOKING IS PERMITTED WITHIN THIS FACILITY, YOU WILL BE EXPOSED TO SECONDHAND SMOKE. SUCH EXPOSURE CAN CAUSE OR CONTRIBUTE TO CANCER, HEART DISEASE, RESPIRATORY ILLNESS, AND OTHER SERIOUS HEALTH PROBLEMS Section 1008. ENFORCEMENT A. Although smoking regulations are primarily selfregulating through social pressure, enforcement of this Regulation shall be the ultimate responsibility of the Brooke County 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. C. Any citizen who desires to register a complaint under this regulation may do so with the Brooke County board of Health. D. Sanitarians employed by the Brooke County Board of Health shall, while an establishment is undergoing an otherwise mandated inspection, inspect for compliance with this regulation. Section 1009. NONRETALIATION 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. Section 1010. 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. Section 1011. 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. Section 1012. 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 nonsmoking 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 16215 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 16215 paragraph and, upon conviction, be subject to a monetary fine. At the time of the adoption of this Clean Indoor Air Regulation, West Virginia Code 16215 provided as follows. Chapter 16215. 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. EFFECTIVE DATE This regulation shall be effective ninety (90) days from and after the date of its adoption on September 25, 2005. REPEAL AND REPLACEMENT OF FORMER REGULATION This regulation repeals