OFFICIAL
TITLE
An Initiative Measure
REPEALING SECTIONS 36-601.01 and 36-601.02, AMENDING BY
ADDING NEW SECTION 36-601.01 and AMENDING SECTION 42-3251.02 ARIZONA REVISED
STATUTES; RELATING TO THE SMOKE-FREE ARIZONA ACT
Be it enacted by the People of the State of
Section 1. Title
This measure shall be known as the “Smoke-Free Arizona Act.”
Section
2. Findings and Declaration of Purpose
WHEREAS,
an estimated 3,000 lung cancer deaths and more than 35,000 coronary heart
disease deaths occur annually among adult nonsmokers in the United States as a
result of exposure to secondhand smoke.
CDC. Annual smoking-attributable
mortality, years of potential life lost, and economic costs. (United States, 1995–1999 Morbidity and Mortality Weekly Report
2002;51(14):300–303.)
WHEREAS,
secondhand smoke has been classified by the Environmental Protection Agency
(EPA) as a Group A carcinogen. This
classification is reserved for chemicals or compounds which have been shown to
cause cancer in humans such as asbestos and benzene. (
WHEREAS,
secondhand smoke is particularly hazardous to elderly people, individuals with
cardiovascular disease, and individuals with impaired respiratory function,
including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an
increased risk of asthma, respiratory infections, sudden infant death syndrome,
developmental abnormalities, and cancer.
(California Environmental Protection Agency (CAL EPA), “Health effects
of exposure to environmental tobacco smoke,” Tobacco Control 6(4): 346-353, Winter, 1997.)
WHEREAS,
numerous economic analyses examining restaurant and hotel receipts and
controlling for economic variables have shown either no difference or a
positive economic impact after enactment of laws requiring workplaces to be
smoke-free. Creation of smoke-free
workplaces is sound economic policy and provides the maximum level of employee
health and safety. (
THEREFORE, The people of Arizona declare that everyone has
the right to breathe clean indoor air in public places and at work, and that
the health of Arizonans will be improved by prohibiting smoking in enclosed
public places and places of employment.
It is the intent of this Proposition to protect patrons, employees and
people who may be particularly vulnerable to the health risks of breathing
secondhand tobacco smoke including children, seniors and people with existing
health problems.
Section 3. Sections
36-601.01 AND 36-601.02 Arizona Revised Statutes are repealed.
Section 4. Title 36,
Article 6, Chapter 6 Article 1 is amended by adding a new 36-601.01 to read:
36-601.01 SMOKE-FREE
A. DEFINITIONS.
THE FOLLOWING WORDS AND PHRASES, WHENEVER USED IN THIS SECTION, SHALL BE
CONSTRUED AS DEFINED IN THIS SECTION:
1.
"EMPLOYEE" MEANS ANY PERSON WHO PERFORMS ANY SERVICE ON A
FULL-TIME, PART-TIME OR CONTRACTED BASIS WHETHER OR NOT THE PERSON IS
DENOMINATED AN EMPLOYEE, INDEPENDENT CONTRACTOR OR OTHERWISE AND WHETHER OR NOT
THE PERSON IS COMPENSATED OR IS A VOLUNTEER.
2.
"EMPLOYER" MEANS A PERSON, BUSINESS, PARTNERSHIP, ASSOCIATION,
THE STATE OF
3.
"ENCLOSED AREA" MEANS ALL SPACE BETWEEN A FLOOR AND CEILING
THAT IS ENCLOSED ON ALL SIDES BY PERMANENT OR TEMPORARY WALLS OR WINDOWS
(EXCLUSIVE OF DOORWAYS), WHICH EXTEND FROM THE FLOOR TO THE CEILING. ENCLOSED AREA INCLUDES A REASONABLE DISTANCE
FROM ANY ENTRANCES, WINDOWS AND VENTILATION SYSTEMS SO THAT PERSONS ENTERING OR
LEAVING THE BUILDING OR FACILITY SHALL NOT BE SUBJECTED TO BREATHING TOBACCO
SMOKE AND SO THAT TOBACCO SMOKE DOES NOT ENTER THE BUILDING OR FACILITY THROUGH
ENTRANCES, WINDOWS, VENTILATION SYSTEMS OR ANY OTHER MEANS.
4.
“HEALTH CARE FACILITY” MEANS ANY ENCLOSED AREA UTILIZED BY ANY HEALTH
CARE INSTITUTION LICENSED ACCORDING TO
TITLE 36 CHAPTER 4, CHAPTER 6 ARTICLE 7, OR CHAPTER 17, OR ANY HEALTH CARE PROFESSIONAL
LICENSED ACCORDING TO TITLE 32 CHAPTERS 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18,
19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41, OR 42.
5.
“PERSON” MEANS AN INDIVIDUAL, PARTNERSHIP, CORPORATION, LIMITED
LIABILITY COMPANY, ENTITY, ASSOCIATION, GOVERNMENTAL SUBDIVISION OR UNIT OF A
GOVERNMENTAL SUBDIVISION, OR A PUBLIC OR PRIVATE ORGANIZATION OF ANY CHARACTER.
6.
“PHYSICALLY SEPARATED” MEANS ALL SPACE BETWEEN A FLOOR AND
CEILING WHICH IS ENCLOSED ON ALL SIDES BY SOLID WALLS OR WINDOWS (EXCLUSIVE OF
DOOR OR PASSAGEWAY) AND INDEPENDENTLY VENTILATED FROM SMOKE-FREE AREAS, SO THAT
AIR WITHIN PERMITTED SMOKING AREAS DOES NOT DRIFT OR GET VENTED INTO SMOKE-FREE
AREAS.
7. "
PLACES OF EMPLOYMENT" MEANS AN ENCLOSED AREA UNDER THE CONTROL OF A PUBLIC
OR PRIVATE EMPLOYER THAT EMPLOYEES NORMALLY FREQUENT DURING THE COURSE OF
EMPLOYMENT, INCLUDING OFFICE BUILDINGS, WORK AREAS, AUDITORIUMS, EMPLOYEE
LOUNGES, RESTROOMS, CONFERENCE ROOMS, MEETING ROOMS, CLASSROOMS, CAFETERIAS,
HALLWAYS, STAIRS, ELEVATORS, HEALTH CARE
FACILITIES, PRIVATE OFFICES AND VEHICLES OWNED AND OPERATED BY THE EMPLOYER
DURING WORKING HOURS WHEN THE VEHICLE IS OCCUPIED BY MORE THAN ONE PERSON. A PRIVATE RESIDENCE IS NOT A "PLACE OF
EMPLOYMENT" UNLESS IT IS USED AS A CHILD CARE, ADULT DAY CARE, OR HEALTH
CARE FACILITY.
8.
“VETERAN AND FRATERNAL CLUBS” MEANS A CLUB AS DEFINED IN A.R.S.
4-101(7)(A)(B) OR (C).
9.
“PUBLIC PLACE" MEANS ANY ENCLOSED AREA TO WHICH THE PUBLIC IS
INVITED OR IN WHICH THE PUBLIC IS PERMITTED, INCLUDING AIRPORTS, BANKS, BARS,
COMMON AREAS OF APARTMENT BUILDINGS, CONDOMINIUMS OR OTHER MULTIFAMILY HOUSING
FACILITIES, EDUCATIONAL FACILITIES, ENTERTAINMENT FACILITIES OR VENUES, HEALTH
CARE FACILITIES, HOTEL AND MOTEL COMMON AREAS, LAUNDROMATS, PUBLIC
TRANSPORTATION FACILITIES, RECEPTION AREAS, RESTAURANTS, RETAIL FOOD PRODUCTION
AND MARKETING ESTABLISHMENTS, RETAIL SERVICE ESTABLISHMENTS, RETAIL STORES,
SHOPPING MALLS, SPORTS FACILITIES, THEATERS, AND WAITING ROOMS. A PRIVATE RESIDENCE IS NOT A "
10.
"RETAIL TOBACCO STORE" MEANS A RETAIL STORE THAT DERIVES THE
MAJORITY OF ITS SALES FROM TOBACCO PRODUCTS AND ACCESSORIES.
11.
"SMOKING" MEANS INHALING, EXHALING, BURNING, OR CARRYING OR POSSESSING
ANY LIGHTED TOBACCO PRODUCT, INCLUDING CIGARS, CIGARETTES, PIPE TOBACCO AND ANY
OTHER LIGHTED TOBACCO PRODUCT.
12.
“SPORTS FACILITIES” MEANS ENCLOSED AREAS OF SPORTS PAVILIONS, STADIUMS,
GYMNASIUMS, HEALTH SPAS, BOXING ARENAS, SWIMMING POOLS, ROLLER AND ICE RINKS,
BILLIARD HALLS, BOWLING ALLEYS, AND OTHER SIMILAR PLACES WHERE MEMBERS OF THE
GENERAL PUBLIC ASSEMBLE TO ENGAGE IN PHYSICAL EXERCISE, PARTICIPATE IN ATHLETIC
COMPETITION, OR WITNESS SPORTING EVENTS.
B. SMOKING IS PROHIBITED IN ALL PUBLIC PLACES
AND PLACES OF EMPLOYMENT WITHIN THE STATE OF
1.
PRIVATE RESIDENCES, EXCEPT WHEN USED AS A LICENSED CHILD CARE, ADULT DAY
CARE, OR HEALTH CARE FACILITY.
2. HOTEL
AND MOTEL ROOMS THAT ARE RENTED TO GUESTS AND ARE DESIGNATED AS SMOKING ROOMS;
PROVIDED, HOWEVER, THAT NOT MORE THAN FIFTY PERCENT OF ROOMS RENTED TO GUESTS
IN A HOTEL OR MOTEL ARE SO DESIGNATED.
3. RETAIL
TOBACCO STORES THAT ARE PHYSICALLY SEPARATED SO THAT SMOKE FROM RETAIL TOBACCO
STORES DOES NOT INFILTRATE INTO AREAS WHERE SMOKING IS PROHIBITED UNDER THE
PROVISIONS OF THIS SECTION.
4.
VETERANS AND FRATERNAL CLUBS WHEN THEY ARE NOT OPEN TO THE GENERAL
PUBLIC.
5.
SMOKING WHEN ASSOCIATED WITH A RELIGIOUS CEREMONY PRACTICED PURSUANT TO
THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978.
6.
OUTDOOR PATIOS SO LONG AS TOBACCO SMOKE DOES NOT ENTER AREAS WHERE
SMOKING IS PROHIBITED THROUGH ENTRANCES, WINDOWS, VENTILATION SYSTEMS, OR OTHER
MEANS.
7. A THEATRICAL PERFORMANCE UPON A STAGE OR IN
THE COURSE OF A FILM OR TELEVISION PRODUCTION IF THE SMOKING IS PART OF THE
PERFORMANCE OR PRODUCTION.
C. THE PROHIBITION ON SMOKING IN PLACES OF
EMPLOYMENT SHALL BE COMMUNICATED TO ALL EXISTING EMPLOYEES BY THE EFFECTIVE
DATE OF THIS SECTION AND TO ALL PROSPECTIVE EMPLOYEES UPON THEIR APPLICATION
FOR EMPLOYMENT.
D. NOTWITHSTANDING ANY
OTHER PROVISION OF THIS SECTION, AN OWNER, OPERATOR, MANAGER, OR OTHER PERSON
OR ENTITY IN CONTROL OF AN ESTABLISHMENT, FACILITY, OR OUTDOOR AREA MAY DECLARE
THAT ENTIRE ESTABLISHMENT, FACILITY, OR OUTDOOR AREA AS A NONSMOKING PLACE.
E. POSTING OF SIGNS AND ASHTRAY REMOVAL.
1. "NO SMOKING" SIGNS OR THE
INTERNATIONAL "NO SMOKING" SYMBOL (CONSISTING OF A PICTORIAL
REPRESENTATION OF A BURNING CIGARETTE ENCLOSED IN A RED CIRCLE WITH A RED BAR
ACROSS IT) SHALL BE CLEARLY AND CONSPICUOUSLY POSTED BY THE OWNER, OPERATOR,
MANAGER, OR OTHER PERSON IN CONTROL OF THAT PLACE IDENTIFYING WHERE SMOKING IS
PROHIBITED BY THIS SECTION AND WHERE COMPLAINTS REGARDING VIOLATIONS MAY BE
REGISTERED.
2. EVERY
3. ALL ASHTRAYS SHALL BE REMOVED FROM ANY AREA
WHERE SMOKING IS PROHIBITED BY THIS SECTION BY THE OWNER, OPERATOR, MANAGER, OR
OTHER PERSON HAVING CONTROL OF THE AREA.
F. NO EMPLOYER MAY DISCHARGE OR RETALIATE
AGAINST AN EMPLOYEE BECAUSE THAT EMPLOYEE EXERCISES ANY RIGHTS AFFORDED BY THIS
SECTION OR REPORTS OR ATTEMPTS TO PROSECUTE A VIOLATION OF THIS SECTION.
G. THE LAW SHALL BE
IMPLEMENTED AND ENFORCED BY THE DEPARTMENT OF HEALTH SERVICES AS FOLLOWS:
1. THE DEPARTMENT SHALL DESIGN AND IMPLEMENT A PROGRAM,
INCLUDING THE ESTABLISHMENT OF AN INTERNET WEBSITE, TO EDUCATE THE PUBLIC
REGARDING THE PROVISIONS OF THIS LAW.
2. THE DEPARTMENT SHALL INFORM PERSONS WHO OWN, MANAGE,
OPERATE OR OTHERWISE CONTROL A PUBLIC PLACE OR PLACE OF EMPLOYMENT OF THE
REQUIREMENTS OF THIS LAW AND HOW TO COMPLY WITH ITS PROVISIONS INCLUDING MAKING
INFORMATION AVAILABLE AND PROVIDING A TOLL-FREE TELEPHONE NUMBER AND E-MAIL
ADDRESS TO BE USED EXCLUSIVELY FOR THIS PURPOSE.
3. ANY MEMBER OF THE PUBLIC MAY REPORT A VIOLATION OF THIS
LAW TO THE DEPARTMENT. THE DEPARTMENT
SHALL ACCEPT ORAL AND WRITTEN REPORTS OF VIOLATION AND ESTABLISH AN E-MAIL
ADDRESS(ES) AND TOLL-FREE TELEPHONE NUMBER(S) TO BE USED EXCLUSIVELY FOR THE
PURPOSE OF REPORTING VIOLATIONS. A
PERSON SHALL NOT BE REQUIRED TO DISCLOSE THE PERSON’S IDENTITY WHEN REPORTING A
VIOLATION.
4. IF THE DEPARTMENT HAS REASON TO BELIEVE A VIOLATION OF
THIS LAW EXISTS, THE DEPARTMENT MAY ENTER UPON AND INTO ANY
5. IF THE DEPARTMENT DETERMINES THAT A VIOLATION OF THIS LAW
EXISTS
6. THE DEPARTMENT SHALL IMPOSE A CIVIL PENALTY ON THE PERSON
IN AN AMOUNT OF NOT LESS THAN $100, BUT NOT MORE THAN $500 FOR EACH VIOLATION.
IN CONSIDERING WHETHER TO IMPOSE A FINE AND THE AMOUNT OF THE FINE, THE
DEPARTMENT MAY CONSIDER WHETHER THE PERSON HAS BEEN CITED PREVIOUSLY AND WHAT
EFFORTS THE PERSON HAS TAKEN TO PREVENT OR CURE THE VIOLATION INCLUDING
REPORTING THE VIOLATION OR TAKING ACTION UNDER SUBSECTION J. EACH DAY THAT A
VIOLATION OCCURS CONSTITUTES A SEPARATE VIOLATION. THE DIRECTOR MAY ISSUE A NOTICE THAT INCLUDES
THE PROPOSED AMOUNT OF THE CIVIL PENALTY ASSESSMENT. A PERSON MAY APPEAL THE ASSESSMENT OF A CIVIL
PENALTY BY REQUESTING A HEARING. IF A
PERSON REQUESTS A HEARING TO APPEAL AN ASSESSMENT, THE DIRECTOR SHALL NOT TAKE
FURTHER ACTION TO ENFORCE AND COLLECT THE ASSESSMENT UNTIL THE HEARING PROCESS
IS COMPLETE. THE DIRECTOR SHALL IMPOSE A
CIVIL PENALTY ONLY FOR THOSE DAYS ON WHICH THE VIOLATION HAS BEEN DOCUMENTED BY
THE DEPARTMENT.
7. IF A CIVIL PENALTY IMPOSED BY THIS SECTION IS NOT PAID,
THE ATTORNEY GENERAL OR A
8. THE DEPARTMENT MAY APPLY FOR INJUNCTIVE RELIEF TO ENFORCE
THESE PROVISIONS IN THE SUPERIOR COURT IN THE
9. THE DEPARTMENT MAY CONTRACT WITH A THIRD PARTY TO
DETERMINE COMPLIANCE WITH THIS LAW.
10. THE DEPARTMENT MAY DELEGATE TO A STATE AGENCY OR
POLITICAL SUBDIVISION OF THIS STATE ANY FUNCTIONS, POWERS OR DUTIES UNDER THIS
LAW.
11. THE DIRECTOR OF THE DEPARTMENT MAY PROMULGATE RULES FOR
THE IMPLEMENTATION AND ENFORCEMENT OF THIS LAW.
THE DEPARTMENT IS EXEMPT FROM THE RULEMAKING PROCEDURES IN A.R.S. §
TITLE 41, CHAPTER 6 EXCEPT THE DEPARTMENT SHALL PUBLISH DRAFT RULES AND
THEREAFTER TAKE PUBLIC INPUT INCLUDING HOLD AT LEAST TWO PUBLIC HEARINGS PRIOR
TO IMPLEMENTING THE RULES. THIS
EXEMPTION EXPIRES MAY 1, 2007.
H. BEGINNING ON JUNE 1, 2008 AND EVERY OTHER
JUNE 1 THEREAFTER, THE DIRECTOR OF THE ARIZONA DEPARTMENT OF HEALTH SERVICES
SHALL ISSUE A REPORT ANALYZING ITS ACTIVITIES TO ENFORCE THIS LAW, INCLUDING
THE ACTIVITIES OF ALL OF THE STATE AGENCIES OR POLITICAL SUBDIVISIONS TO WHOM
THE DEPARTMENT HAS DELEGATED RESPONSIBILITY UNDER THIS LAW.
I. AN OWNER, MANAGER, OPERATOR OR EMPLOYEE OF
PLACE REGULATED BY THIS LAW SHALL INFORM ANY PERSON WHO IS SMOKING IN VIOLATION
OF THIS LAW THAT SMOKING IS ILLEGAL AND REQUEST THAT THE ILLEGAL SMOKING STOP
IMMEDIATELY.
J. THIS LAW DOES NOT CREATE ANY NEW PRIVATE
RIGHT OF ACTION NOR DOES IT EXTINGUISH ANY EXISTING COMMON LAW CAUSES OF
ACTION.
K. A PERSON WHO SMOKES WHERE SMOKING IS
PROHIBITED IS GUILTY OF A PETTY OFFENSE WITH A FINE OF NOT LESS THAN FIFTY
DOLLARS AND NOT MORE THAN THREE HUNDRED DOLLARS.
L. SMOKE-FREE
1. THE SMOKE-FREE
2. ALL MONEY IN THE SMOKE-FREE ARIZONA FUND
SHALL BE USED TO ENFORCE THE PROVISIONS OF THIS SECTION PROVIDED HOWEVER THAT
IF THERE IS MONEY REMAINING AFTER THE DEPARTMENT HAS MET ITS ENFORCEMENT
OBLIGATIONS, THAT REMAINING MONEY SHALL BE DEPOSITED IN THE TOBACCO PRODUCTS
TAX FUND AND USED FOR EDUCATION PROGRAMS TO REDUCE AND ELIMINATE TOBACCO USE
AND FOR NO OTHER PURPOSE.
3. MONIES IN THIS FUND ARE CONTINUOUSLY
APPROPRIATED, ARE NOT SUBJECT TO FURTHER APPROVAL, DO NOT REVERT TO THE GENERAL
FUND AND ARE EXEMPT FROM THE PROVISIONS OF §36-190 RELATING TO THE LAPSING OF
APPROPRIATIONS.
M. THIS SECTION DOES NOT PREVENT A POLITICAL
SUBDIVISION OF THE STATE FROM ADOPTING ORDINANCES OR REGULATIONS THAT ARE MORE
RESTRICTIVE THAN THIS SECTION NOR DOES THIS SECTION REPEAL ANY EXISTING
ORDINANCE OR REGULATION THAT IS MORE RESTRICTIVE THAN THIS SECTION.
N. TRIBAL SOVEREIGNTY - THIS SECTION HAS NO APPLICATION ON INDIAN RESERVATIONS AS DEFINED
IN ARS 42-3301(2).
Section
5. Title 42, Chapter 3, Article 6, Arizona Revised Statutes is amended by
adding section 42-3251.02 to read:
42-3251.02. LEVY AND COLLECTION OF TOBACCO TAX FOR
SMOKE-FREE
A. IN ADDITION TO THE TAXES IMPOSED BY
42-3251(1), THERE IS LEVIED AND SHALL BE COLLECTED AN ADDITIONAL TAX OF ONE
TENTH OF ONE CENT ON EACH CIGARETTE.
B. MONIES COLLECTED PURSUANT TO THIS SECTION
SHALL BE DEPOSITED, PURSUANT TO §§ 35-146 AND 35-147, IN THE SMOKE-FREE
Section 6.
1. If any provision, clause, sentence, or
paragraph of this Act or the application thereof to any person or circumstances
shall be held invalid, that invalidity shall not affect the other provisions of
this Act which can be given effect without the invalid provision or
application, and to this end the provisions of this Act are declared to be
severable.
2. §36-601.01(M) and §42-3251.02 becomes
effective on the date of enactment. The
remaining provisions of this Act become effective on May 1, 2007.