Smoking in the Workplace

Prohibits smoking in enclosed areas in state and county
workplaces.  Provides for the department of health to enforce
compliance in state workplaces, and for the mayors to enforce
compliance in county workplaces.  Allows the counties to impose
stricter provisions regarding smoking in workplaces.  (SB1231

THE SENATE                              S.B. NO.           S.D. 3
TWENTIETH LEGISLATURE, 1999                                H.D. 2
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The purpose of this Act is to amend the Smoking
 2 in the Workplace Act, codified as chapter 328K, part II, Hawaii
 3 Revised Statutes, to:
 4      (1)  Prohibit smoking in all enclosed areas in state and
 5           county offices, including state- and county-owned,
 6           leased, or controlled workplaces and vehicles;
 7      (2)  Specify that the department of health is to enforce
 8           compliance with respect to smoking in state workplaces,
 9           while the mayor of each county is to enforce compliance
10           regarding smoking in county workplaces; and
11      (3)  Allow the counties to impose stricter provisions
12           regarding smoking in workplaces.
13      SECTION 2.  Chapter 328K, Hawaii Revised Statutes, is
14 amended by adding two new sections to be appropriately designated
15 and to read as follows:
16      "328K-A  Smoking prohibited in enclosed areas in public
17 workplaces.  (a)  Smoking is prohibited in all enclosed areas of
18 public workplaces, including state- and county-owned, leased, or
19 controlled workplaces and vehicles.

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 1      (b)  This section shall not apply to:
 2      (1)  Dining areas of food service establishments and bars;
 3      (2)  Meeting or banquet rooms in hotels, motels, or other
 4           lodging establishments when used for private functions;
 5      (3)  Convention center facilities when used for private
 6           functions;
 7      (4)  The guest rooms of a hotel/hotel-condo as defined in
 8           section 486K-1; or
 9      (5)  Involuntarily confined residents of state or county
10           institutions.
11      328K-B  County authority to regulate smoking in workplaces.
12 Nothing in this chapter shall be construed as preempting the
13 counties' authority to impose stricter or more stringent
14 requirements than this part with respect to prohibiting smoking
15 in workplaces."
16      SECTION 3.  Section 328K-12, Hawaii Revised Statutes, is
17 amended as follows:
18      1.  By adding two new definitions to be appropriately
19 inserted and to read:
20      ""County workplace" means a workplace in a county-owned,
21 leased, or controlled structure.
22      "State workplace" means a workplace in a state-owned,
23 leased, or controlled structure."

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 1      2.  By amending the definitions of "enclosed" and "office
 2 workplace" to read:
 3      ""Enclosed" means closed in by a roof and four walls with
 4 openings for ingress and egress.  Areas commonly described as
 5 [public] lobbies and enclosed hallways are [not] enclosed for the
 6 purposes of this [chapter.] part.
 7      ["Office workplace"] "Workplace" means any enclosed
 8 structure or portion thereof used by an employer[.], excluding a
 9 partially enclosed structure."
10      3.  By deleting the definition of "simple majority".
11      ["Simple majority" means any number greater than half of the
12 persons expressing a preference in any specific work area."]
13      SECTION 4.  Section 328K-15, Hawaii Revised Statutes, is
14 amended to read as follows:
15      "[[]328K-15[]]  Penalties and enforcement.(a)  The
16 director of health shall enforce section [328K-13] 328K-A against
17 violations with respect to smoking in state workplaces by the
18 following actions:
19      (1)  Serving notice requiring the correction of any
20           violation of this part;
21      (2)  Calling upon the attorney general to maintain an action
22           for injunction to enforce this part, to cause the
23           correction of any violation, and for assessment and
24           recovery of a civil penalty for such violation; or

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 1      (3)  Calling upon the governor[, or the mayor, as the case
 2           may be,] to enforce compliance.
 3      (b)  The mayor of each county shall enforce section 328K-A
 4 against violations with respect to smoking in county workplaces
 5 by the following actions:
 6      (1)  Serving notice requiring the correction of any
 7           violation of this part; or
 8      (2)  Calling upon the county prosecuting attorney to
 9           maintain an action for injunction to enforce this part,
10           to cause the correction of any violation, and for
11           assessment and recovery of a civil penalty for such
12           violation.
13      [(b)] (c)  Any person who violates section [328K-13] 328K-A
14 shall be liable for a civil penalty not to exceed $500, which
15 penalty shall be assessed and recovered in a civil action in any
16 court of competent jurisdiction.  Each day such violation is
17 committed or permitted to continue shall constitute a separate
18 offense and shall be punishable as such.  Any penalty assessed
19 and recovered in an action brought pursuant to this section shall
20 be paid to the general fund.
21      [(c)] (d)  Any member of the general public may request
22 [the]:

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 1      (1)  The department of health to enforce any violations of
 2           this part[.] with respect to smoking in state
 3           workplaces; or
 4      (2)  The mayor of the respective county to enforce any
 5           violations of this part with respect to smoking in
 6           county workplaces.
 7      [(d)] (e)  In enforcing this part, the State [is] and
 8 counties are undertaking only to promote the general welfare[.
 9 It is] and are not assuming, nor [is it] are they imposing on
10 [its] their officers and employees, an obligation for breach of
11 which [it is] the State and counties may be liable in money
12 damages to any person who claims that such breach proximately
13 caused injury."
14      SECTION 5.  Section 328K-13, Hawaii Revised Statutes, is
15 repealed.
16      ["[328K-13]  Regulation of smoking in the office workplace.
17 (a)  Each employer in the State shall within three months after
18 June 24, 1987, adopt, implement, and maintain a written smoking
19 policy which shall contain, at the minimum, the following
20 provisions and requirements:
21      (1)  That if any nonsmoking employee objects to the employer
22           about smoke in the employee's workplace, the employer,
23           using already available means of ventilation or

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 1           separation or partition of office space, shall attempt
 2           to reach a reasonable accommodation, insofar as
 3           possible, between the preferences of nonsmoking and
 4           smoking employees; provided that an employer is not
 5           required by this chapter to make any expenditures or
 6           structural changes to accommodate the preferences of
 7           nonsmoking or smoking employees; and
 8      (2)  That if an accommodation which is satisfactory to all
 9           affected employees cannot be reached in any given
10           office workplace, the preferences of a simple majority
11           of employees in each specifically affected area shall
12           prevail and the employer shall accordingly prohibit or
13           allow smoking in that particular area of the office
14           workplace.  If the employer's decision is
15           unsatisfactory to the nonsmoking employees, a simple
16           majority of all nonsmoking employees can appeal to the
17           director of health for the determination of a
18           reasonable accommodation.  Where the employer prohibits
19           smoking in an office workplace, the area in which
20           smoking is prohibited shall be clearly marked with
21           signs.

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 1      (b)  The smoking policy shall be announced within two weeks
 2 of the vote of preferences of the employees in each respective
 3 work area and posted conspicuously in all the affected
 4 workplaces."]
 5      SECTION 6.  In codifying the new sections added to chapter
 6 328K, Hawaii Revised Statutes, by section 2 of this Act, the
 7 revisor of statutes shall substitute appropriate section numbers
 8 for letters used in the designation of those new sections in this
 9 Act.
10      SECTION 7.  Statutory material to be repealed is bracketed.
11 New statutory material is underscored.
12      SECTION 8.  This Act shall take effect upon its approval.