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Initiative 901 Expands Smoking Ban in Washington State – Employers in the Hospitality Industry Most Affected
By G. Lindsey,
III, Michael J.
Killeen, and Tahl Tyson
[November 2005]
Existing Law
The Washington Clean Indoor Air Act (WCIAA) of 1985 prohibits smoking in a “public place,” except within designated smoking areas. Currently, bars, taverns, restaurants, bowling alleys, and tobacco shops can be designated smoking areas in their entirety.
What Does Initiative 901 (I-901) Do?
I-901, which was passed as part of the November 8, 2005 general election, amends the WCIAA in several significant ways.
Effective Date
I-901 takes effect on December 8, 2005.
I-901 Expands “No Smoking” Areas
As a result of I-901, owners, employers, or other persons in charge must prohibit smoking in “public places” and “places of employment.” The section allowing designated smoking areas in restaurants and the like has been repealed. Employers should inform employees to the extent the law mandates changes to existing smoking policies, and must ensure that employees don’t smoke in violation of the law within company-controlled areas.
Note: Washington employers also remain subject to a regulation under the Washington Industrial Safety Safe and Health Act (WISHA), which prohibits smoking in all office worksites. I-901 does not change the WISHA regulation. Consequently, employers are subject to citation under both the WCIAA and WISHA, although the WCIAA, as expanded by I-901, virtually eliminates all smoking in the workplace, whereas the WISHA regulation still contains a number of exceptions.
The definition of “public place” is now expanded to include bars, taverns, bowling alleys, schools, skating rinks, and (non-tribal) casinos. Additionally, at least 75 percent of the sleeping quarters within a hotel or motel that are rented to guests must remain smoke-free.
Furthermore, smoking is now also prohibited in a “place of employment.” A “place of employment” includes “any area under the control of a public or private employer which employees are required to pass through during the course of employment,” including, but are not limited to: entrances and exits, work areas, restrooms, conference and class rooms, break rooms and cafeterias, and “other common areas.”
Mandatory “No Smoking” Signs
Owners and employers, now covered by the WCIAA as a result of I-901, must post “smoking prohibited” signs conspicuously at each building entrance. The WCIAA already requires that additional “smoking prohibited” signs be posted conspicuously in prominent locations throughout retail stores and retail service establishments.
Private Residences
Private residences are covered if they are used to provide licensed childcare, foster care, adult care, or other similar social service care on the premises.
25-Foot Rule
Smoking is banned within 25 feet of any entrance, exit, windows that open, or ventilation intakes of all “public places” and “places of employment.” The initiative defines 25 feet as the “presumptively reasonable minimum distance.” Owners, employers, or others who own or control a public place or place of employment can rebut the 25-foot presumption by presenting clear and convincing evidence to the local health department that public health and safety will be adequately protected by a lesser distance. Passers-by a public place, who smoke while using a public sidewalk or public right of way, are not in violation of the law.
Enforcement; Civil Penalties
Any person who intentionally smokes in a public place or place or employment or removes, defaces or destroys a required sign is subject to a civil fine of up to $100 through the issuance of a notice of infraction by local law enforcement in the same manner as traffic infractions. Enforcement as to owners and employers has been switched from fire departments to local health departments and local law enforcement agencies. Owners or other persons in charge of public places and places of employment will first be given a warning by the local health department regarding any violation. A subsequent violation can result in a civil fine up to $100 per day (each day constitutes a separate violation).
Areas of Uncertain Interpretation
Like any new law, particularly a law drafted as an initiative, there are ambiguities and potential unintended consequences. Some examples include:
- Outdoor work sites, outdoor decks/spaces, parking lots, and indoor/covered parking – Are they “places of employment?"
- Hotel/motels – How to resolve the apparent conflict between the exclusion of 25% of the guest rooms from the definition of a “public place” and the ban on smoking in “places of employment?"
- Private clubs – The existing WCIAA specifically states that “[t]his chapter is not intended to restrict smoking in private facilities which are occasionally open to the public except upon occasions when the facility is open to the public.” Does the new “places of employment” prong of the amended law trump this exception?
- Conspicuously posted signs - What will new enforcement authorities consider “conspicuous” enough to meet the law?
- Passers-by at a “place of employment” – The passer-by exception pertains to “[a]ny person passing by or through a public place.” Will enforcement authorities cite a passer-by smoking within 25 feet of a “place of employment”? Is the owner or employer subject to violation if individuals are smoking as they pass-by a “place of employment”?
- First warning – If a local law enforcement officer cites an individual for violating the no smoking law, does that constitute a first warning to the owner or employer? Or, must the first warning officially come from the local health department?
Q & A:
Q: Is a private club, which only employs five staff, affected by I-901?
A: Maybe. All places of employment are covered by the statute. And, I-901 does not exclude small employers.
Q: Can a hotel establish a public smoking room for guests if it keeps employees away from these rooms?
A: Maybe. The answer to this question is not clear yet. A hotel can designate up to 25 percent of the sleeping rooms as smoking rooms; however, this may conflict with the prohibition on smoking in a “place of employment.” We are waiting for the State to interpret this section of the law.
Q: Does I-901 forbid actors from smoking during the course of a stage performance?
A: Probably. The language of I-901 does not include an exemption for performers in plays or stage performances.
Q: Is the owner of a chain of restaurants responsible for ensuring compliance with the law at all locations?
A: Yes, the owner or any other person in charge is responsible for ensuring compliance with the law.
Q: Currently, a building owner allows smoking in a designated area of the indoor parking garage. Can this continue under new law?
A: Probably not. If a parking garage is used by the public and within a building, it may be considered a “public place” where smoking is banned. Also, if employees of the building owner or person in charge “are required to pass through [the area] during the course of employment” smoking is prohibited.
If you need advice about your obligations
under I-901 or have other questions related to employment law,
please contact:
This
Advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP.
Our purpose in publishing this Advisory is to inform our clients
and friends of recent developments in employment
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only
in response to inquiries regarding particular situations.
Copyright
© 2005, Davis Wright Tremaine LLP.
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