Session of 1998
                   
HOUSE BILL No. 2944
         
By Representative Campbell
         
2-13
            9             AN ACT concerning smoking; relating to smoking in places of employ-
10             ment; repealing K.S.A. 21-4009 through 21-4015 and 21-4017 and re-
11             pealing the existing sections.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. (a) The legislature finds and declares that regulation of
15       smoking in the workplace is a matter of statewide interest and concern.
16       Except as provided by this section, it is the intent of the legislature in
17       enacting this section to prohibit the smoking of tobacco products in all
18       enclosed places of employment in this state thereby eliminating the need
19       for cities and counties to enact workplace smoking restrictions within their
20       respective jurisdictions. It is further the intent of the legislature to create
21       a uniform statewide standard to restrict and prohibit the smoking of to-
22       bacco products in enclosed places of employment, in order to reduce
23       employee exposure to environmental tobacco smoke to a level that will
24       prevent anything other than insignificantly harmful effects to exposed
25       employees and also to eliminate the confusion and hardship that may
26       result from enactment or enforcement of disparate local workplace smok-
27       ing restrictions. Notwithstanding any other provision of this section, it is
28       the intent of the legislature that any area not defined as a ``place of em-
29       ployment'' pursuant to subsection (d) or in which the smoking of tobacco
30       products is not regulated pursuant to subsection (e) shall be subject to
31       local regulation of smoking of tobacco products.
32           (b) No employer knowingly or intentionally shall permit, and no per-
33       son shall engage in, the smoking of tobacco products in an enclosed space
34       at a place of employment.
35           (c) For purposes of this section, an employer who permits any
36       nonemployee access to the employer's place of employment on a regular
37       basis has not acted knowingly or intentionally if such employer has taken
38       the following reasonable steps to prevent smoking by a nonemployee:
39           (1) Posted clear and prominent signs, as follows:
40           (A) Where smoking is prohibited throughout the building or struc-
41       ture, a sign stating ``No smoking'' shall be posted at each entrance to the
42       building or structure.
43           (B) Where smoking is permitted in designated areas of the building

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  1       or structure, a sign stating ``Smoking is prohibited except in designated
  2       areas'' shall be posted at each entrance to the building or structure.
  3           (2) Has requested, when appropriate, that a nonemployee who is
  4       smoking refrain from smoking in the enclosed workplace.
  5           For purposes of this subsection, ``reasonable steps'' shall not include:
  6           (A) The physical ejection of a nonemployee from the place of em-
  7       ployment; or
  8           (B) any requirement for making a request to a nonemployee to re-
  9       frain from smoking, under circumstances involving a risk of physical harm
10       to the employer or any employee.
11           (d) For purposes of this section, ``place of employment'' shall not
12       include any of the following:
13           (1) Sixty-five percent of the guest room accommodations in a hotel,
14       motel or similar transient lodging establishment.
15           (2) Areas of the lobby in a hotel, motel or other similar transient
16       lodging establishment designated for smoking by the establishment. Such
17       an establishment may permit smoking in a designated lobby area that
18       does not exceed 25% of the total floor area of the lobby or, if the total
19       area of the lobby is 2,000 square feet or less, that does not exceed 50%
20       of the total floor area of the lobby. For purposes of this paragraph, ``lobby''
21       means the common public area of such an establishment in which reg-
22       istration and other similar or related transactions, or both, are conducted
23       and in which the establishment's guests and members of the public typ-
24       ically congregate.
25           (3) Meeting and banquet rooms in a hotel, motel, other transient
26       lodging establishment similar to a hotel, motel, restaurant, or public con-
27       vention center, except while food or beverage functions are taking place,
28       including setup, service and cleanup activities or when the room is being
29       used for exhibit purposes. At times when smoking is not permitted in
30       such a meeting or banquet room pursuant to this paragraph, the estab-
31       lishment may permit smoking in corridors and prefunction areas adjacent
32       to and serving the meeting or banquet room if no employee is stationed
33       in that corridor or area on other than a passing basis.
34           (4) Retail or wholesale tobacco shops and private smokers' lounges.
35       For purposes of this paragraph:
36           (A) ``Private smokers' lounge'' means any enclosed area in or attached
37       to a retail or wholesale tobacco shop that is dedicated to the use of tobacco
38       products, including, but not limited to, cigars and pipes.
39           (B) ``Retail or wholesale tobacco shop'' means any business establish-
40       ment the main purpose of which is the sale of tobacco products, including,
41       but not limited to, cigars, pipe tobacco and smoking accessories.
42           (5) Cabs of trucks as defined by K.S.A. 8-126, and amendments
43       thereto, during the hours of employment if no nonsmoking employees

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  1       are present.
  2           (6) Warehouse facilities. For purposes of this paragraph, ``warehouse
  3       facility'' means a warehouse facility with more than 100,000 square feet
  4       of total floor space, and 20 or fewer full-time employees working at the
  5       facility, but does not include any area within such a facility that is utilized
  6       as office space.
  7           (7) A racetrack facility as defined by K.S.A. 74-8802, and amend-
  8       ments thereto.
  9           (8) A tribal gaming facility as defined by K.S.A. 1997 Supp. 74-9803,
10       and amendments thereto.
11           (9) Any room, hall, building, enclosure or outdoor area used for the
12       management, operation or conduct of a game of bingo.
13           (10) A drinking establishment means a club, as defined by K.S.A. 41-
14       2601, and amendments thereto, and a place of business which is licensed
15       to sell cereal malt beverages for consumption on the premises. A drinking
16       establishment shall include those facilities located within a hotel, motel
17       or other transient occupancy establishment. If located within a building
18       in conjunction with another use, including a restaurant, a drinking estab-
19       lishment shall include only those areas used primarily for the sale of al-
20       coholic and cereal malt beverages. A drinking establishment shall not
21       include the dining area of a restaurant, regardless of whether alcoholic
22       or cereal malt beverages are served therein.
23           (11) Theatrical production sites, if smoking is an integral part of the
24       story in the theatrical production.
25           (12) Medical research or treatment sites, if smoking is integral to the
26       research and treatment being conducted.
27           (13) Private residences, except as provided by K.S.A. 65-530, and
28       amendments thereto.
29           (14) Patient smoking areas in long-term care facilities, as defined in
30       K.S.A. 65-425a, and amendments thereto.
31           (15) Breakrooms designated by employers for smoking, provided that
32       all of the following conditions are met:
33           (A) Air from the smoking room shall be exhausted directly to the
34       outside by an exhaust fan. Air from the smoking room shall not be recir-
35       culated to other parts of the building;
36           (B) the employer shall comply with any ventilation standard or other
37       standard utilizing appropriate technology, including, but not limited to,
38       mechanical, electronic and biotechnical systems, adopted by the occu-
39       pational safety and health standards board or the federal environmental
40       protection agency. If both adopt inconsistent standards, the ventilation
41       standards of the occupational safety and health standards board shall be
42       no less stringent than the standards adopted by the federal environmental
43       protection agency;

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  1           (C) the smoking room shall be located in a nonwork area where no
  2       one, as part of an employee's work responsibilities, is required to enter.
  3       For purposes of this paragraph, ``work responsibilities'' does not include
  4       any custodial or maintenance work carried out in the breakroom when it
  5       is unoccupied; and
  6           (D) there are sufficient nonsmoking breakrooms to accommodate
  7       nonsmokers.
  8           (16) Employers with a total of five or fewer employees, either full-
  9       time or part-time, may permit smoking where all of the following con-
10       ditions are met:
11           (A) The smoking area is not accessible to minors;
12           (B) all employees who enter the smoking area consent to permit
13       smoking. No one, as part of an employee's work responsibilities, shall be
14       required to work in an area where smoking is permitted. An employer
15       who is determined by the secretary of the department of health and en-
16       vironment to have used coercion to obtain consent or who has required
17       an employee to work in the smoking area shall be subject to a fine in the
18       amount provided by subsection (g);
19           (C) air from the smoking area shall be exhausted directly to the out-
20       side by an exhaust fan. Air from the smoking area shall not be recirculated
21       to other parts of the building; and
22           (D) the employer shall comply with any ventilation standard or other
23       standard utilizing appropriate technology, including, but not limited to,
24       mechanical, electronic and biotechnical systems, adopted by the occu-
25       pational safety and health standards board or the federal environmental
26       protection agency. If both adopt inconsistent standards, the ventilation
27       standards of the occupational safety and health standards board shall be
28       no less stringent than the standards adopted by the federal environmental
29       protection agency.
30           This paragraph shall not be construed to (i) supersede or render in-
31       applicable any condition or limitation on smoking areas made applicable
32       to specific types of business establishments by any other paragraph of this
33       subsection or (ii) apply in lieu of any otherwise applicable paragraph of
34       this subsection that has become inoperative.
35           (e) Paragraphs (15) and (16) of subsection (d) shall not be construed
36       to require employers to provide reasonable accommodation to smokers,
37       or to provide breakrooms for smokers or nonsmokers.
38           (f) Nothing in this section shall prohibit an employer from prohibiting
39       smoking in an enclosed place of employment for any reason.
40           (g) Any person violating the provisions of this section shall be guilty
41       of a misdemeanor punishable by a fine not to exceed $100 for a first
42       violation; $200 for a second violation within one year; and $500 for a third
43       and for each subsequent violation within one year. This section shall be

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  1       enforced by local law enforcement agencies including, but not limited to,
  2       local health departments, as determined by the local governing body.
  3           (h) The secretary of the department of health and environment shall
  4       not be required to respond to any complaint regarding the smoking of
  5       tobacco products in an enclosed space at a place of employment, unless
  6       the employer has been found guilty pursuant to subsection (g) of a third
  7       violation of subsection (b) within the previous year.
  8           (i) The secretary of health and environment or the local health de-
  9       partment may institute an action in any court of competent jurisdiction
10       to enjoin repeated violations of this section.
11           (j) Nothing in this section shall prevent any city or county from reg-
12       ulating smoking within its boundaries, so long as such regulation is at least
13       as stringent as that imposed by this section. In such cases, the more
14       stringent local regulation shall control to the extent of any inconsistency
15       between such regulation and this section.
16           Sec. 2. K.S.A. 21-4009 through 21-4015 and 21-4017 are hereby re-
17       pealed.
18           Sec. 3. This act shall take effect and be in force from and after its
19       publication in the statute book.
20      
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