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Senate Amendment 5
H 3681 - Session 125 (2023-2024)
Omnibus Tobacco Enforcement Act of 2023
Senator McElveen proposes the following amendment (LC-3681.VR0018S):
Amend the Bill, as and if amended, by:
SECTION1. Chapter 95, Title 44 of the 1976 Code is amended to read:
"CHAPTER 95
South Carolina Clean Indoor Air Act
Section 44-95-10. This chapter may be cited as the Clean Indoor Air Act of 1990.
Section 44-95-20. It is unlawful for a person to smoke or possess lighted smoking material in any form in the following public indoor areas except where a smoking area is designated as provided for in this chapter:
(1) public schools and preschools;
(2) all other indoor facilities providing children's services to the extent that smoking is prohibited in the facility by federal law and all other childcare facilities, as defined in Section 63-13-20, which are licensed pursuant to Chapter 13, Title 63;
(3) health care facilities as defined in Section 44-7-130, except where smoking areas are designated in employee break areas. However, nothing in this chapter prohibits or precludes a health care facility from being smoke free;
(4) government buildings, except health care facilities as provided for in this section, except that smoking may be allowed in enclosed private offices and designated areas of employee break areas. However, smoking policies in the State Capitol and Legislative Office Buildings must be determined by the office of government having control over its respective area of the buildings. "Government buildings" means buildings or portions of buildings which are leased or operated under the control of the State or any of its political subdivisions, except those buildings or portions of buildings which are leased to other organizations or corporations;
(5) elevators;
(6) public transportation vehicles, except for taxicabs;
(7) arenas and auditoriums of public theaters or public performing art centers. However, smoking areas may be designated in foyers, lobbies, or other common areas, and smoking is permitted as part of a legitimate theatrical performance; and
(8) buildings, or portions of buildings, and the outside areas immediately contiguous to these buildings owned, leased, operated, or maintained by a public institution of higher learning, as defined in Section 59-103-5, that the governing board of the institution has designated as nonsmoking.
Section 44-95-30. In areas where smoking is permitted in Section 44-95-20, the owner, manager, or agent in charge of the premises or vehicle referenced in Section 44-95-20 shall conspicuously display signs designating smoking and nonsmoking areas alike, except that signs are not required in private offices.
Section 44-95-40. In complying with Section 44-95-30, the owner, manager, or agent in charge of the premises shall make every reasonable effort to prevent designated smoking areas from impinging upon designated smoke-free areas by the use of existing physical barriers and ventilation systems.
Section 44-95-50. A person who violates Section 44-95-20, 44-95-30 or 44-95-40 of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than ten dollars nor more than twenty-five dollars.
Section 44-95-60. No person in this State is authorized to require any other person to submit to any form of testing to determine whether or not the person has nicotine or other tobacco residue in his body.
Section 44-95-10. This chapter shall be known as the South Carolina Clean Indoor Air Act of 2023.
Section 44-95-20. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
(1) "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.
(2) "Business" means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered; and private clubs.
(3) "Electronic smoking device" means any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person in any manner for the purpose of inhaling vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.
(4) "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, or a person who volunteers his or her services for a nonprofit entity.
(5) "Employer" means a person, business, partnership, association, corporation, including a municipal corporation, trust, or nonprofit entity that employs the services of one or more individual persons.
(6) "Enclosed area" means all space between a floor and a ceiling that is bounded on at least two sides by walls, doorways, or windows, whether open or closed. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent and whether or not containing openings of any kind.
(7) "Health care facility" means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long-term care facilities, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.
(8) "Hookah" means a water pipe and any associated products and devices which are used to produce fumes, smoke, and/or vapor from the burning of material including, but not limited to, tobacco, shisha, or other plant matter.
(9) "Place of employment" means an area under the control of a public or private employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction sites, temporary offices, and vehicles. A private residence is not a 'place of employment' unless it is used as a child care, adult day care, or health care facility.
(10) "Playground" means any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds or on State grounds or grounds of any political subdivision of the State.
(11) "Private club" means an organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain, and which only sells alcoholic beverages incidental to its operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Section 501.
(12) "Public event" means an event which is open to and may be attended by the general public, including but not limited to, such events as concerts, fairs, farmers' markets, festivals, parades, performances, and other exhibitions, regardless of any fee or age requirement.
(13) "Public place" means an area to which the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, gambling facilities, health care facilities, hotels and motels, laundromats, parking structures, public transportation vehicles and facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. A private residence is not a 'public place' unless it is used as a child care, adult day care, or health care facility.
(14) "Recreational area" means any public or private area open to the public for recreational purposes, whether or not any fee for admission is charged, including but not limited to, amusement parks, athletic fields, beaches, fairgrounds, gardens, golf courses, parks, plazas, skate parks, swimming pools, trails, and zoos.
(15) "Restaurant" means an eating establishment, including but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term 'restaurant' shall include a bar area within the restaurant.
(16) "Service line" means an indoor or outdoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines.
(17) "Shopping mall" means an enclosed or unenclosed public walkway or hall area that serves to connect retail or professional establishments.
(18) "Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, hookah, or any other lighted or heated tobacco or plant product intended for inhalation, including marijuana, whether natural or synthetic, in any manner or in any form. 'Smoking' includes the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this chapter.
(19) "Sports arena" means a place where people assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events, including sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and bowling alleys.
Section 44-95-30. All enclosed areas, including buildings and vehicles owned, leased, or operated by the State or any of its subdivisions, as well as all outdoor property adjacent to such buildings and under the control of the State, shall be subject to the provisions of this chapter.
Section 44-95-40. Smoking is prohibited in all enclosed public places within the State of South Carolina, including but not limited to, the following places:
(1) aquariums, galleries, libraries, and museums;
(2) areas available to the general public in businesses and non-profit entities patronized by the public, including but not limited to, banks, laundromats, professional offices, and retail service establishments;
(3) bars;
(4) bingo facilities;
(5) childcare and adult day care facilities;
(6) convention facilities;
(7) educational facilities, both public and private;
(8) elevators;
(9) gambling facilities;
(10) health care facilities;
(11) hotels and motels;
(12) lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities;
(13) parking structures;
(14) polling places;
(15) public transportation vehicles, including buses and taxicabs, under the authority of the State, and public transportation facilities, including bus, train, and airport facilities;
(16) restaurants;
(17) restrooms, lobbies, reception areas, hallways, and other common-use areas;
(18) retail stores;
(19) rooms, chambers, places of meeting or public assembly, including school buildings, under the control of an agency, board, commission, committee or council of the State or a political subdivision of the State;
(20) service lines;
(21) shopping malls;
(22) sports arenas, including enclosed places in outdoor arenas;
(23) theatres and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances.
Section 44-95-50. (A) Smoking is prohibited in all enclosed areas of places of employment without exception. This includes, without limitation, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
(B) This prohibition on smoking must be communicated to all existing employees by the effective date of this chapter and to all prospective employees upon their application for employment.
Section 44-95-70. Smoking is prohibited in the following enclosed residential facilities:
(1) all private and semi-private rooms in nursing homes; and
(2) all hotel and motel guest rooms.
Section 44-95-80. Smoking is prohibited in the following outdoor places:
(1) Within a reasonable distance of twenty feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to prevent tobacco smoke from entering those areas.
(2) On all outdoor property that is adjacent to buildings owned, leased, or operated by the State and that is under the control of the State.
(3) In, and within twenty feet of, outdoor seating or serving areas of restaurants, bars, and gambling facilities.
(4) In outdoor shopping malls, including parking structures.
(5) In all outdoor arenas, stadiums, and amphitheaters. Smoking is also prohibited in, and within twenty feet of, bleachers and grandstands for use by spectators at sporting and other public events.
(6) In outdoor recreational areas, including parking lots.
(7) In, and within twenty feet of, all outdoor playgrounds.
(8) In, and within twenty feet of, all outdoor public events.
(9) In, and within twenty feet of, all outdoor public transportation stations, platforms, and shelters under the authority of the State or any of its subdivisions.
(10) In all outdoor service lines, including lines in which service is obtained by persons in vehicles, such as service that is provided by bank tellers, parking lot attendants, and toll takers. In lines in which service is obtained by persons in vehicles, smoking is prohibited by both pedestrians and persons in vehicles, but only within twenty feet of the point of service.
(11) In outdoor common areas of apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities, except in designated smoking areas, not to exceed twenty-five percent of the total outdoor common area, which must be located at least twenty feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited.
Section 44-95-90. (A) Smoking is prohibited in all outdoor places of employment where two or more employees are required to be in the course of their employment. This includes, without limitation, work areas, construction sites, and temporary offices such as trailers, restroom facilities, and vehicles.
(B) This prohibition on smoking must be communicated to all existing employees by the effective date of this chapter and to all prospective employees upon their application for employment.
Section 44-95-100. Notwithstanding any other provision of this chapter to the contrary, smoking shall not be prohibited in private residences, unless used as a childcare, adult day care, or health care facility.
Section 44-95-110. Notwithstanding any other provision of this chapter, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking is prohibited in any place in which a sign conforming to the requirements of Section 44-95-120 is posted.
Section 44-95-120. The owner, operator, manager, or other person in control of a place of employment, public place, private club, or residential facility where smoking is prohibited by this chapter shall:
(1) clearly and conspicuously post '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) in that place;
(2) clearly and conspicuously post at every entrance to that place a sign stating that smoking is prohibited or, in the case of outdoor places, clearly and conspicuously post 'No Smoking' signs in appropriate locations as determined by the South Carolina Department of Health and Human Services or an authorized designee;
(3) clearly and conspicuously post on every vehicle that constitutes a place of employment under this chapter at least one sign, visible from the exterior of the vehicle, stating that smoking is prohibited; and
(4) remove all ashtrays from any area where smoking is prohibited by this chapter, except for ashtrays displayed for sale and not for use on the premises.
Section 44-95-130. (A) No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, customer, or resident of a multiple-unit residential facility because that employee, applicant, customer, or resident exercises any rights afforded by this chapter or reports or attempts to prosecute a violation of this chapter. Notwithstanding any provision to the contrary, violation of this subsection is a misdemeanor, punishable by a fine not to exceed one thousand dollars for each violation.
(B) An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party.
Section 44-95-140. The South Carolina Department of Health and Human Services shall adopt rules and promulgate regulations as are necessary and reasonable to implement the provisions of this chapter. Notice of the provisions of this chapter must be given to all applicants for a business license in the State.
Section 44-95-150. (A) This chapter must be enforced by local health departments, city managers, county administrators, and their authorized designees.
(B) Any citizen who desires to register a complaint under this chapter may initiate enforcement with the local health department, city manager, or county administrator.
(C) Local health departments, fire departments, and their designees shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this chapter.
(D) An owner, manager, operator, or employee of an area regulated by this chapter shall direct a person who is smoking in violation of this chapter to extinguish or turn off the product being smoked. If the person does not stop smoking, the owner, manager, operator, or employee shall refuse service and shall immediately ask the person to leave the premises. If the person in violation refuses to leave the premises, the owner, manager, operator, or employee shall contact a law enforcement agency.
(E) Notwithstanding any other provision of this chapter, an employee or private citizen may bring legal action to enforce this chapter.
(F) In addition to the remedies provided by the provisions of this section, local health departments, city managers, county administrators, and any persons aggrieved by the failure of the owner, operator, manager, or other person in control of a public place or a place of employment to comply with the provisions of this chapter may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.
Section 44-95-160. (A) A person who smokes in an area where smoking is prohibited by the provisions of this chapter is guilty of an infraction, punishable by a fine not exceeding fifty dollars.
(B) Except as otherwise provided in this chapter, a person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this chapter is guilty of an infraction, punishable by:
(1) a fine not exceeding one hundred dollars for a first violation;
(2) a fine not exceeding two hundred dollars for a second violation within one year;
(3) a fine not exceeding five hundred dollars for each additional violation within one year.
(C) In addition to the fines established by this section, violation of this chapter by a person who owns, manages, operates, or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred.
(D) Violation of this chapter is hereby declared to be a public nuisance, which may be abated by restraining order, preliminary and permanent injunction, or other means provided for by law.
(E) Each day on which a violation of this chapter occurs shall be considered a separate and distinct violation.
Section 44-95-170. Nothing in this chapter shall be construed to prevent a political subdivision of the State from adopting local ordinances or regulations relating to smoking in workplaces and public places that are more restrictive than this chapter, nor does this chapter repeal any existing local ordinances or regulations that provide restrictions on smoking that are equivalent to, or greater than, those provided by this chapter.
Section 44-95-180. The South Carolina Department of Health and Human Services shall engage in a continuing program to explain and clarify the purposes and requirements of this chapter to citizens affected by it, and to guide owners, operators, and managers in their compliance with it. The program may include publication of a brochure for affected businesses and individuals explaining the provisions of this chapter.
Section 44-95-190. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable state or local laws.
Section 44-95-200. This chapter shall be liberally construed so as to further its purposes