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In Legal Terms - Convention Issue 2003
Alabama's New Smoking Law Takes Effect
During the 2003 Regular
Session, the Alabama Legislature passed into law the "Alabama
Clean Indoor Act" (Act No. 2003-314). The bill had
been introduced during several earlier legislative sessions,
but had always been heavily contested in the Alabama House,
in part due to its mandates on small businesses to prohibit
smoking in their buildings. It appeared that the bill,
a pet project of Senator Vivian Figures from Mobile, would
meet the same fate in 2003. But after lengthy negotiations
in conference committee, a stripped down version of the
bill was agreed upon by supporters and opponents, and
approved by the House and Senate near the end of the last
night of the session.
The law, which went into effect
on September 1, 2003, prohibits smoking in the common
areas of most public buildings, with some exceptions which
will be discussed below. It also sets out civil penalties
for violation of the act. The Department of Public Health,
with assistance from the Fire Marshall, is responsible
for enforcement of the act, and fines may be levied against
an individual violating its provisions and against a person
in charge of a public place1
for failure to comply with the smoking restrictions. The
Department of Public Health may also issue regulations
on procedures to be followed in complying with and enforcing
the law.
Many aspects of this new law
need clarification, and I would anticipate that there
will be revisions made in future legislative sessions.
I also suspect that the attorney general's office will
be asked to interpret certain provisions of the act in
the near future, and hopefully, the Health Department
will develop administrative procedures. To date, however,
I have been unable to locate any interpretations of the
act.
With limited exceptions, Act No. 2003-314 prohibits smoking
in a public place or at a public meeting. Certain businesses,
such as bars and lounges, are excluded from the act. However,
the prohibition generally applies to all public buildings
and specifically names government buildings as one of
the public places required to restrict smoking.
The law has provisions allowing
for the designation of a smoking area within public places,
but states that in certain buildings, including governmental
buildings, the person in charge of the public place may
not designate a smoking area unless the area is enclosed
and well ventilated. Private offices within governmental
buildings are excluded from this prohibition. This restriction
also applies to child care facilities, hospitals and other
health care facilities or offices, multi-unit residential
facilities, elevators, restrooms, polling places, libraries,
museums, lobbies and other common areas, and public transportation
conveyances. For a smoking area to be designated, the
space must have physical barriers and ventilation systems
used to minimize the effects of smoke. The space shall
be no more than one-fourth of the total square footage
in the public place "unless clientele dictates otherwise".
The designated smoking area shall not contain common facilities
which are expected to be used by the public.
One of the most confusing sections
in this new law deals with adoption of a smoking policy
for an office. The law states that an employer may
adopt, implement, and make known a written smoking policy
by December 1, 2003. Once established, a copy of the policy
must be communicated to all employees within three weeks
and made available to all current and potential employees
upon request. The language in the Act does not appear
to require establishing a written policy, and the December
1 date does not seem to have any particular significance
since there is no prohibition against adopting a policy
after that date. Moreover, since the law went into effect
on September 1, compliance with the Act's mandates should
already be in place.
Any written policy adopted
must allow for an employee to designate his or her work
area as a nonsmoking area. The employer is responsible
for providing appropriate signs for the employee to post.
Additionally, smoking shall be prohibited in all common
work areas unless a majority of workers in the area agree
that a smoking area will be designated. The law clearly
states, however, that an employer may designate his or
her entire place of employment as a nonsmoking area. I
assume that if the employer does choose to make the entire
office or facility a nonsmoking office, that prohibition
would include the individual offices of each employee.
The law requires that "no
smoking" signs be prominently posted and properly
maintained by the owner, operator, manager or other person
in charge of a facility in places where smoking is prohibited
by the act. "Smoking Area" signs must also be
posted where applicable.
The county is defined as an
employer under the law. "Any other separate corporate
instrumentality or unit of state or local government"
is also an employer. While the law does not specifically
address establishment of a policy in different offices
within the same building, it could be argued that the
office of each local elected official is a "separate
corporate instrumentality", and that each official
can establish policy for his or her employees and individual
offices (i.e. probate office, sheriff's office, etc.).
However, since all county buildings are the responsibility
of the county commission, it would appear that the county
commission is the "person in charge of" those
public buildings, and as such, responsible for compliance
with the law regarding the prohibition against smoking
in public areas such as restrooms, courthouse lobbies,
elevators, etc.
It is somewhat unclear to me
exactly how enforcement will be carried out. The law states
that public agencies responsible for the management and
maintenance of governmental buildings are required to
report observed violations to the Department of Public
Health. The State Marshall shall also report violations
observed during periodic inspections.
Once notified of violations,
the Department is to issue a notice to comply to the appropriate
person in charge of the public place, and if such person
fails to comply within 30 days, the Department will assess
a civil penalty not to exceed $50 for the first violation,
$100 for a second violation, and $200 for each subsequent
violation. If noncompliance continues, the department
may file a complaint in circuit court to force compliance.
The law does not provide what type of action should be
filed, nor does it set out what penalties can be issued
by the court.
As noted at the outset, there
are many portions of this new law which are not really
adequately outlined in the act, and the enforcement provisions
are not well written. Hopefully, the Department of Public
Health will not aggressively pursue compliance with this
law until both public and private employers become familiar
with its requirements and implementation procedures. I
suspect that most counties already have smoking policies
in place which comply in large part to the mandates of
this law. However, counties should review their smoking
policies in light of this new statutory mandate, and make
revisions as necessary to avoid fines and penalties for
noncompliance with the law.
1 There is no definition
of "the person in charge of the public place"
in this new law. ACCA staff tried repeatedly, but unsuccessfully
to have this term clarified in the legislation.
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