Introduced Version






HOUSE BILL No. 1149

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 7.1-5-12; IC 12-7-2-178.8; IC 12-24-2-8; IC 16-18-2; IC 16-41-37.

Synopsis: Smoking ban. Prohibits smoking: (1) in public places; (2) in enclosed areas of a place of employment; (3) in certain state vehicles; and (4) within 12 feet of a public entrance to a public place or an enclosed area of a place of employment. Allows smoking in: (1) certain gaming facilities; (2) cigar and hookah bars; and (3) fraternal, social, and veterans clubs; if certain requirements are met. Requires the alcohol and tobacco commission to enforce this prohibition. Makes it a Class B infraction to violate the smoking prohibition and a Class A infraction if the person has been adjudged to have committed three prior unrelated infractions for violations. Prohibits firing or refusing to hire a person for reporting a violation or exercising any right or performing any obligation under the smoking prohibitions. Removes the authority of a superintendent of a state institution to regulate smoking. Moves the prohibition against smoking on a school bus during the school week to Title 7.1. Repeals the current clean indoor air law. Makes a technical correction.

Effective: Upon passage.





Turner, Brown C, Brown T, Welch




    January 9, 2012, read first time and referred to Committee on Public Health.







Introduced

Second Regular Session 117th General Assembly (2012)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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HOUSE BILL No. 1149



    A BILL FOR AN ACT to amend the Indiana Code concerning alcohol and tobacco.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 7.1-5-12; (12)IN1149.1.1. -->     SECTION 1. IC 7.1-5-12 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]:
     Chapter 12. Prohibition on Smoking
    Sec. 1. As used in this chapter, "public place" means an enclosed area of a structure in which the public is invited or permitted.
    Sec. 2. As used in this chapter, "smoking" means the:
        (1) carrying or holding of a lighted cigarette, cigar, or pipe or any other lighted smoking equipment; or
        (2) inhalation or exhalation of smoke from lighted smoking equipment.
    Sec. 3. (a) Except as provided in section 4 of this chapter, smoking is prohibited in the following:
        (1) A public place.
        (2) Enclosed areas of a place of employment.
        (3) A vehicle owned, leased, or operated by the state if the vehicle is being used for a governmental function.
        (4) The area within twelve (12) feet of a public entrance to:
            (A) a public place; or
            (B) an enclosed area of a place of employment.
    (b) An employer shall inform each of the employer's employees and prospective employees of the smoking prohibition applying to the place of employment.
    (c) An owner, operator, manager, or official in charge of a public place or place of employment shall remove ashtrays or other smoking paraphernalia from areas of the public place or place of employment where smoking is prohibited under this chapter. However, this subsection does not prohibit the display of ashtrays or other smoking paraphernalia that are intended only for retail sale.
    Sec. 4. (a) Except as provided in subsection (c) and subject to section 11 of this chapter, smoking is allowed in the following:
        (1) The gaming area of a horse racing facility operated under a permit under IC 4-31-5.
        (2) The gaming area of a riverboat (as defined in IC 4-33-2-17) and any other gaming area in a permanent structure that is:
            (A) owned or leased by the owner of the riverboat; and
            (B) located on land that is adjacent to:
                (i) the dock to which the riverboat is moored; or
                (ii) the land on which the riverboat is situated in the case of a riverboat described in IC 4-33-2-17(2).
        (3) The gaming area of a facility that operates under a gambling game license under IC 4-35-5.
        (4) The gaming area of a satellite facility licensed under IC 4-31-5.5.
        (5) An establishment that meets the following requirements:
            (A) The establishment was in business and permitted smoking on February 3, 2012.
            (B) The establishment prohibits entry by an individual who is less than twenty-one (21) years of age.
            (C) The establishment holds a beer, liquor, or wine retailer's permit.
            (D) The establishment limits smoking in the establishment to either:
                (i) cigar smoking; or
                (ii) smoking with a waterpipe or hookah device.
            (E) During the preceding calendar year, at least ten percent (10%) of the establishment's annual gross income

was from the sale of either:
                (i) cigars and the rental of onsite humidors; or
                (ii) sale of loose tobacco for use in a waterpipe or hookah device.
            (F) The person in charge of the establishment posts in the establishment conspicuous signs that display the message that cigarette smoking is prohibited.
        (6) A business that meets the following requirements:
            (A) The business was in existence and permitted smoking on February 3, 2012.
            (B) The business is exempt from federal income taxation under 26 U.S.C. 501(c).
            (C) The business:
                (i) meets the requirements to be considered a club under IC 7.1-3-20-1; or
                (ii) is a fraternal club (as defined in IC 7.1-3-20-7).
            (D) The business provides food or alcoholic beverages only to its bona fide members and their guests.
            (E) That during a meeting of the business's members, voted within the previous two (2) years to remain a smoking business.
    (b) The owner, operator, manager, or official in charge of an establishment in which smoking is allowed under this section shall post conspicuous signs in the establishment that read "WARNING: Smoking Is Allowed In This Establishment" or other similar language.
    (c) This section does not allow smoking in the following enclosed areas of an establishment described in subsection (a):
        (1) Any hallway, elevator, or other common area where an individual who is less than eighteen (18) years of age is permitted.
        (2) Any room that is intended for use by an individual who is less than eighteen (18) years of age.
    Sec. 5. (a) The commission shall enforce this chapter.
    (b) This chapter may also be enforced by:
        (1) the state department of health established by IC 16-19-1-1;
        (2) a local health department, as defined in IC 16-18-2-211; and
        (3) the division of fire and building safety established within the department of homeland security by IC 10-19-7-1;
in cooperation with the commission.
    (c) The commission, the state department of health, a local

health department, or the division of fire and building safety may inspect premises that are subject to this chapter to ensure that the person responsible for the premises is in compliance with this chapter.
     Sec. 6. (a) This section does not apply to an establishment in which smoking is allowed under section 4 of this chapter.
    (b) The owner, operator, manager, or official in charge of a public place shall do the following:
        (1) Post conspicuous signs that read "Smoking Is Prohibited By State Law" or other similar language.
        (2) Ask an individual who is smoking in violation of this chapter to refrain from smoking.
        (3) Remove from the public place an individual who is smoking in violation of this chapter and fails to refrain from smoking after being asked to refrain from smoking.
    (c) The owner or operator of a restaurant shall post a conspicuous sign at each entrance to the restaurant informing the public that smoking is prohibited in the restaurant.
    Sec. 7. (a) A person who smokes in an area where smoking is prohibited by this chapter commits prohibited smoking, a Class B infraction, except as provided in subsection (b).
    (b) A person who smokes in an area where smoking is prohibited by this chapter commits prohibited smoking, a Class A infraction if the person has been adjudged to have committed at least three (3) prior unrelated infractions under:
        (1) this section; or
        (2) IC 16-41-37-4 (before its repeal).
    Sec. 8. (a) An owner, manager, operator, or official in charge of a public place or place of employment who fails to comply with a requirement imposed by this chapter commits a Class B infraction, except as provided in subsection (b).
    (b) A failure to comply described in subsection (a) is a Class A infraction if the owner, manager, operator, or official has been adjudged to have committed at least three (3) prior unrelated infractions under this chapter.
    Sec. 9. A person, owner, manager, or employer shall not discharge, refuse to hire, or in any manner retaliate against an individual for:
        (1) reporting a violation of this chapter; or
        (2) exercising any right or satisfying any obligation under this chapter.

     Sec. 10. (a) As used in this section, "school bus" means a motor

vehicle that is:
        (1) designed and constructed for the accommodation of at least ten (10) passengers;
        (2) owned or operated by a public or governmental agency, or privately owned and operated for compensation; and
        (3) used for the transportation of school children to and from the following:
            (A) School.
            (B) School athletic games or contests.
            (C) Other school functions.
    (b) As used in this section, "school week" means a normal week that:
        (1) begins on Monday and ends on Friday; and
        (2) includes at least three (3) days during which, on each day, more than four (4) hours of classroom instruction are provided.
    (c) A person who smokes in a school bus during a school week or while the school bus is being used for the transportation of school children to and from:
        (1) a school;
        (2) a school athletic game or contest; or
        (3) another school function;
commits a Class B infraction, except as provided in subsection (d).
    (d) A person who smokes in a school bus as described in subsection (c) commits a Class A infraction if the person, within the twelve (12) months immediately preceding the person's act of smoking in a school bus, committed at least three (3) prior unrelated acts of smoking in a school bus for which the person was adjudged to have committed infractions under this section.
    Sec. 11. This chapter does not prohibit a county, city, town, or other governmental unit from adopting an ordinance more restrictive than this chapter.

     Sec. 12. (a) Notwithstanding sections 4(b), 6(b)(1), and 6(c) of this chapter, the owner, operator, manager, or official in charge of an establishment, public place, or place of employment is not required to post any sign required under this chapter until April 1, 2012.
    (b) This section expires April 2, 2012.

SOURCE: IC 12-7-2-178.8; (12)IN1149.1.2. -->     SECTION 2. IC 12-7-2-178.8 IS REPEALED [EFFECTIVE UPON PASSAGE]. Sec. 178.8. "Smoking", for purposes of IC 12-24-2-8, has the meaning set forth in IC 16-41-37-3.
SOURCE: IC 12-24-2-8; (12)IN1149.1.3. -->     SECTION 3. IC 12-24-2-8 IS REPEALED [EFFECTIVE UPON

PASSAGE]. Sec. 8. (a) Notwithstanding IC 12-27-3-3, the superintendent of a state institution has complete authority to regulate smoking (as defined in IC 16-41-37-3) within the state institution.
    (b) A physician licensed under IC 25-22.5 may prescribe nicotine as is medically necessary for a resident of a state institution.

SOURCE: IC 16-18-2-10; (12)IN1149.1.4. -->     SECTION 4. IC 16-18-2-10, AS AMENDED BY P.L.42-2011, SECTION 34, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 10. (a) "Agency", for purposes of IC 16-23.5, has the meaning set forth in IC 16-23.5-1-2.
    (b) "Agency", for purposes of IC 16-41-37, has the meaning set forth in IC 16-41-37-1.
SOURCE: IC 16-18-2-295; (12)IN1149.1.5. -->     SECTION 5. IC 16-18-2-295, AS AMENDED BY P.L.41-2007, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 295. (a) "Provider", for purposes of IC 16-21-8, has the meaning set forth in IC 16-21-8-0.5.
    (b) "Provider", for purposes of IC 16-38-5, IC 16-39 (except for IC 16-39-7), and IC 16-41-1 through IC 16-41-9, and IC 16-41-37, means any of the following:
        (1) An individual (other than an individual who is an employee or a contractor of a hospital, a facility, or an agency described in subdivision (2) or (3)) who is licensed, registered, or certified as a health care professional, including the following:
            (A) A physician.
            (B) A psychotherapist.
            (C) A dentist.
            (D) A registered nurse.
            (E) A licensed practical nurse.
            (F) An optometrist.
            (G) A podiatrist.
            (H) A chiropractor.
            (I) A physical therapist.
            (J) A psychologist.
            (K) An audiologist.
            (L) A speech-language pathologist.
            (M) A dietitian.
            (N) An occupational therapist.
            (O) A respiratory therapist.
            (P) A pharmacist.
            (Q) A sexual assault nurse examiner.
        (2) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or described in IC 12-24-1 or IC 12-29.
        (3) A health facility licensed under IC 16-28-2.
        (4) A home health agency licensed under IC 16-27-1.
        (5) An employer of a certified emergency medical technician, a certified emergency medical technician-basic advanced, a certified emergency medical technician-intermediate, or a certified paramedic.
        (6) The state department or a local health department or an employee, agent, designee, or contractor of the state department or local health department.
    (c) "Provider", for purposes of IC 16-39-7-1, has the meaning set forth in IC 16-39-7-1(a).
     (d) "Provider", for purposes of IC 16-48-1, has the meaning set forth in IC 16-48-1-3.
SOURCE: IC 16-18-2-323.1; (12)IN1149.1.6. -->     SECTION 6. IC 16-18-2-323.1 IS REPEALED [EFFECTIVE UPON PASSAGE]. Sec. 323.1. "School bus", for purposes of IC 16-41-37, has the meaning set forth in IC 16-41-37-2.3.
SOURCE: IC 16-18-2-323.4; (12)IN1149.1.7. -->     SECTION 7. IC 16-18-2-323.4 IS REPEALED [EFFECTIVE UPON PASSAGE]. Sec. 323.4. "School week", for purposes of IC 16-41-37, has the meaning set forth in IC 16-41-37-2.7.
SOURCE: IC 16-41-37; (12)IN1149.1.8. -->     SECTION 8. IC 16-41-37 IS REPEALED [EFFECTIVE UPON PASSAGE]. (Clean Indoor Air Law).
SOURCE: ; (12)IN1149.1.9. -->     SECTION 9. An emergency is declared for this act.