[Vision2020] Over reaching LOCAL legislation

Sat Jul 25 15:21:24 PDT 2009

I don't think your outside 20 foot halo legal argument will hold much water considering Idaho Statute 39-5511 specifically says that local, county, or municipal governments are not prohibited from adopting more restrictive provisions than the current state law.

http://www3.state.id.us/cgi-bin/newidst?sctid=390550011.K

                                  TITLE  39
                              HEALTH AND SAFETY
                                  CHAPTER 55
                               CLEAN INDOOR AIR
    39-5511.  LOCAL PROVISIONS. Nothing in this chapter shall be interpreted
to prevent local, county or municipal governments from adopting ordinances or
regulations more restrictive than the provisions contained herein.

Even the last FAQ on Senator Hill's website addresses your question in some light.

" 'Politics is the art of controlling your environment.' That is one of the key things I learned in these years, and I learned it the hard way. Anybody who thinks that 'it doesn't matter who's President' has never been Drafted and sent off to fight and die in a vicious, stupid War on the other side of the World -- or been beaten and gassed by Police for trespassing on public property -- or been hounded by the IRS for purely political reasons -- or locked up in the Cook County Jail with a broken nose and no phone access and twelve perverts wanting to stomp your ass in the shower. That is when it matters who is President or Governor or Police Chief. That is when you will wish you had voted." - Hunter S. Thompson

From: bear at moscow.com
To: vision2020 at moscow.com
Date: Sat, 25 Jul 2009 15:09:35 -0700
Subject: [Vision2020] Over reaching LOCAL legislation

Since the local INDOOR smoking ban, is a shoe string off of the Idaho INDOOR Clean Air Act,  isn't making OUTDOOR smoking a bit of a legal stretch? I'm not sure that the LOCAL GOVERNMENT even has the authority under the Idaho INDOOR Clean Air Act to legislate OUTDOOR smoking outside of the parameters set by the state legislation. Looks like the gang of 7 has done a bit of overreaching . Looks like this one will cost us money when it is brought to the courts.  Specifically: "The twenty-foot “halo” around public entrances only applies to indoor shopping malls, airport terminals, indoor sports arenas, hospitals, libraries, concert halls, and schools. Hotels, restaurants and other retail establishments are not subject to the smoking prohibition within twenty feet. "  The STATE legislature  it appears, has the last say on this one and has already spoken!

Idaho Clean Indoor Air Act
Questions & Answers
Senator Brent Hill
Idaho’s Clean Indoor Air Act that prohibits smoking in public places goes into effect on July 1. Since its passage by the 2004 Legislature, I have received dozens of calls asking how the law will apply to specific situations. The Department of Health and Welfare is in the process of promulgating rules, but that process will not be complete until well after businesses must comply with the law on July 1.
As author of the Clean Indoor Air Act, I can at least explain the legislative intent of the new law. While the final rules may further clarify the law, here are my opinions regarding the most commonly asked questions:
Q: What is a “public place?”
A: Any enclosed indoor place of business, whether publicly or privately owned, to which persons other than employees have general and regular access or which the public uses. Examples include: Office buildings, all retail stores, restaurants, hospitals, schools, concert halls, indoor sports arenas.
Q: So are “designated smoking areas” still permitted in public places?
A: No.
Q: Are there exceptions to the smoke-free rules?
A: Yes. The most notable exceptions are bars and bowling centers.
Q: Does that mean bars and bowling centers must allow smoking?
A: No. Any proprietor can prohibit smoking within a business establishment.
Q: Must outdoor (i.e. patio) seating at restaurants also be smoke free?
A: No. The law only covers indoor facilities.
Q: If there is a bar within a restaurant, can smoking be allowed in the bar if it is enclosed with walls or glass partitions?
A: No. The law specifically prohibits smoking in bars within restaurants, even if they are separately enclosed.
Q: Can a bar that serves food ever allow smoking?
A: Yes, but only if it restricts admittance to adults over age 21 and clearly posts at the entrances that smoking is permitted.
Q: What if a “general store” has sections for groceries, dry goods, snack bar, fishing gear, etc., and a small area where beer is served? Can smoking be allowed in the “bar area?”
A: No. A bar must be a separate facility with a separate outside entrance.

Q: What about professional (i.e. legal, accounting, real estate) offices?
A: Smoking is not permitted even when clients/customers are not present.

Q: What about manufacturing plants?
A: The law does not prohibit smoking in manufacturing and other facilities unless “persons other than employees have general and regular access” to the facilities.
Q: I hear smoking will not be allowed within twenty feet of public places. Is that true?
A: The twenty-foot “halo” around public entrances only applies to indoor shopping malls, airport terminals, indoor sports arenas, hospitals, libraries, concert halls, and schools. Hotels, restaurants and other retail establishments are not subject to the smoking prohibition within twenty feet.
Q: Can airport terminals provide designated smoking rooms?
A: No.
Q: Can hotels still provide “smoking rooms?”
A: Yes, but all common areas must be smoke-free.
Q: What about a small business within my private home?
A: An office or small business, other than a child care facility, occupying less than 50% of a private residence, is not required to be smoke-free.
Q: Can a business have smoking break rooms for its employees?
A: No. Only very small businesses with five or fewer employees are permitted to maintain smoking break rooms, and even they are subject to restrictions.
Q: Can a business build a shelter outside its facility where employees can smoke?
A: Yes, but it must not share the same ventilation system with the public facility.
Q: What do I do if someone is smoking in a public place?
A: No-smoking laws are pretty much self-enforcing. If someone is violating the law, they probably just need to be reminded. However, you may report the violation to an owner or employee of the business.
Q: What is the business owner’s responsibility?
A: To ask the smoker to either extinguish the smoking material or leave the premises. If the smoker refuses, the business may contact law enforcement.
Q: Can a city council pass ordinances to prohibit smoking in bowling centers and/or bars?
A: Yes. The law specifically permits local municipalities to pass laws more restrictive than the state law.
Q: How can a business be sure it is in compliance with the new law?
A: If in doubt, I would suggest you consult an attorney. But be very cautious not to stretch the intent of Idaho’s Clean Indoor Air Act. You or your attorney can access the legislation at www3.state.id.us/oasis/S1283.html.

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