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AN ACT

RELATING TO HEALTH; CHANGING THE NAME OF THE CLEAN INDOOR ACT

TO THE DEE JOHNSON CLEAN INDOOR AIR ACT; LOCATIONS OF TOBACCO

SMOKING; PROVIDING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 24-16-1 NMSA 1978 (being Laws 1985,

Chapter 85, Section 1) is amended to read:

"24-16-1. SHORT TITLE.-- Chapter 24, Article 16 NMSA

1978 may be cited as the "Dee Johnson Clean Indoor Air Act"."

Section 2. Section 24-16-3 NMSA 1978 (being Laws 1985,

Chapter 85, Section 3) is amended to read:

"24-16-3. DEFINITIONS.--As used in the Dee Johnson

Clean Indoor Air Act:

A. "bar" means an establishment that is devoted to

the selling or serving of alcoholic beverages for consumption

by patrons on the premises and in which the serving of food is

only incidental to the consumption of those beverages,

including taverns, nightclubs, cocktail lounges and cabarets;

B. "cigar bar" means an establishment that:

(1) is a bar as defined in Subsection A of

this section; and

(2) is engaged in the business of selling

cigars for consumption by patrons on the premises and

generates ten percent or more of its total annual gross

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revenue or at least ten thousand dollars ($10,000) in annual

sales from the sale of cigars, not including any sales from

vending machines. A cigar bar that fails to generate at least

ten percent of its total annual sales from the sale of cigars

in the calendar year after December 31, 2006, not including

sales from vending machines, shall not be defined as a cigar

bar and shall not thereafter be known as such regardless of

sales figures. A cigar bar shall agree to provide adequate

information to demonstrate to the state's satisfaction

compliance with this definition;

C. "department" means the department of health;

D. "designated outdoor smoking area" means an area

where smoking may be permitted, designated by an employer or

manager, outside an indoor workplace or indoor public place;

provided that the following conditions are maintained:

(1) smoking shall not be permitted near any

building entrance, including a door, window or ventilation

system of any facility where smoking is prohibited under the

provisions of the Dee Johnson Clean Indoor Air Act, so as to

prevent secondhand smoke from entering the indoor workplace or

indoor public place; and

(2) employees or members of the general

public are not required to walk through the smoking area to

gain entrance to the indoor workplace or indoor public place;

E. "employer" means an individual, a partnership,

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a corporation or the state or a political subdivision of the

state that employs the services of one or more individuals;

F. "enclosed" means any interior space

predominantly or totally bounded on all sides and above by

physical barriers, regardless of whether such barriers consist

of or include uncovered openings, screened or otherwise

partially covered openings or open or closed windows;

G. "indoor public place" means the enclosed area

within any governmental or nongovernmental place to which the

public is invited or in which the public is permitted

regardless of whether work or public business, meetings or

hearings occur at any given time;

H. "indoor workplace" means any enclosed place

where one or more persons engage in work, including lobbies,

reception areas, offices, conference and meeting rooms,

employee cafeterias and lunchrooms, break rooms and employee

lounges, classrooms, auditoriums, hallways, stairways, waiting

areas, elevators and restrooms and includes all indoor

workplaces and enclosed parts regardless of whether work

occurs at any given time;

I. "private club" means an organization, whether

incorporated or not, that is the owner, lessee or occupant of

a building or portion thereof used exclusively for the

organization's purposes at all times, that is operated solely

for recreational, fraternal, social, patriotic, political,

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benevolent or athletic purposes, but not for pecuniary gain,

and that only sells alcoholic beverages incidental to its

operation. The organization shall have bylaws or a

constitution to govern its activities and shall have been

granted an exemption as a club under the provisions of Section

501 of the Internal Revenue Code of 1986, as amended;

J. "restaurant" means a coffee shop, cafeteria,

private or public school cafeteria or eating establishment and

any other eating establishment that gives or offers for sale

food to the public, patrons or employees, including kitchens

and catering facilities in which food is prepared on the

premises for serving elsewhere or a bar area within or

attached to the premises;

K. "retail tobacco store" means a retail store

used primarily for the sale of tobacco products and

accessories and in which the sale of other products is merely

incidental, including smoke shops, cigar shops or hookah

lounges, and does not include establishments that offer for

sale alcoholic beverages for consumption by patrons on the

premises;

L. "secondhand smoke" means smoke emitted from

lighted, smoldering or burning tobacco when the smoker is not

inhaling, smoke emitted at the mouthpiece during puff drawing

and smoke exhaled by the smoker;

M. "smokefree area" means any building or other

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enclosed space where smoking is prohibited;

N. "smoking" means inhaling, exhaling, burning,

carrying or holding any lighted tobacco product, including all

types of cigarettes, cigars and pipes and any other lighted

tobacco product; and

O. "smoking-permitted area" means any building or

other enclosed space where smoking may be permitted; provided

that secondhand smoke does not infiltrate any area where

smoking is prohibited pursuant to the Dee Johnson Clean Indoor

Air Act."

Section 3. Section 24-16-4 NMSA 1978 (being Laws 1985,

Chapter 85, Section 4, as amended) is amended to read:

"24-16-4. SMOKING PROHIBITED.--

A. It is unlawful for a person to smoke in any

indoor workplace or indoor public place or in buses, taxicabs

or other means of public transit not specifically exempted

pursuant to the Dee Johnson Clean Indoor Air Act.

B. No part of the state capitol or capitol north

shall be designated as a smoking-permitted area."

Section 4. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"SMOKING-PERMITTED AREAS.--Notwithstanding any other

provision of the Dee Johnson Clean Indoor Air Act, smoking-

permitted areas include the following:

A. a private residence, except during hours of

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business operation while it is being used commercially to

provide child care, adult care or health care or any

combination of those activities;

B. a retail tobacco store;

C. a cigar bar;

D. the facilities of a tobacco manufacturing

company licensed by the United States to manufacture tobacco

products that are operated by the company in its own name and

that are used exclusively by the company in its business of

manufacturing, marketing or distributing its tobacco products;

provided that smoke does not infiltrate other indoor

workplaces or other indoor public places where smoking is

otherwise prohibited under the Dee Johnson Clean Indoor Air

Act;

E. a state-licensed gaming facility, casino or

bingo parlor;

F. an indoor workplace to the extent that tobacco

smoking is an integral part of a smoking cessation program

that is approved by the department or of medical or scientific

research that is conducted in the indoor workplace and in

which each room of the indoor workplace in which tobacco

smoking is permitted complies with signage requirements;

G. designated outdoor smoking areas;

H. private clubs;

I. a limousine under private hire;

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J. hotel and motel rooms that are rented to guests

and are designated as smoking-permitted rooms; provided that

not more than twenty-five percent of rooms rented to guests in

a hotel or motel may be so designated;

K. enclosed areas within restaurants, bars, hotel

and motel conference or meeting rooms while these places are

being used for private functions; provided that none of these

areas are open to the general public while the private

functions are occurring and provided that smoke does not

infiltrate other indoor workplaces or indoor public places

where smoking is otherwise prohibited under the Dee Johnson

Clean Indoor Air Act;

L. a site that is being used in connection with

the practice of cultural or ceremonial activities by Native

Americans and that is in accordance with the federal American

Indian Religious Freedom Act, 42 U.S.C. 1996 and 1996a;

M. a business of a sole proprietor or a business

with fewer than two employees that is not commonly accessible

to the public; provided that:

(1) the business is not a restaurant or bar;

(2) the employer or manager of such business

shall provide a smoke-free work environment for each employee

requesting a smoke-free work environment; and

(3) cigarette smoke does not infiltrate

other smoke-free work environments as provided for in the Dee

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Johnson Clean Indoor Air Act; and

N. a theatrical stage or a motion picture or

television production set when it is necessary for performers

to smoke as part of the production."

Section 5. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"PROHIBITION OF SMOKING NEAR ENTRANCES, WINDOWS AND

VENTILATION SYSTEMS.--Smoking is prohibited near entrances,

windows and ventilation systems of all workplaces and public

places where smoking is prohibited by the Dee Johnson Clean

Indoor Air Act. An individual who owns, manages, operates or

otherwise controls the use of any premises subject to the

provisions of the Dee Johnson Clean Indoor Air Act shall

establish a smokefree area that extends a reasonable distance

from any entrances, windows and ventilation systems to any

enclosed areas where smoking is prohibited. The reasonable

distance shall be a distance sufficient to ensure that persons

entering or leaving the building or facility shall not be

subjected to breathing tobacco smoke and to ensure that

tobacco smoke does not enter the building or facility through

entrances, windows, ventilation systems or any other means."

Section 6. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"RESPONSIBILITIES OF EMPLOYERS.--

A. Employers shall provide that their places of

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employment meet the requirements of the Dee Johnson Clean

Indoor Air Act.

B. An employer shall adopt, implement, post and

maintain a written smoking policy pursuant to the Dee Johnson

Clean Indoor Air Act."

Section 7. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"POSTED SMOKEFREE AND SMOKING-PERMITTED AREAS.--

A. To advise persons of the existence of smokefree

areas or smoking-permitted areas, signs shall be posted as

follows:

(1) for each indoor workplace or indoor

public place where smoking is prohibited pursuant to the Dee

Johnson Clean Indoor Air Act, a "NO SMOKING" sign shall be

posted where it is clear, conspicuous and easily legible at

each public entrance. Posting of "NO SMOKING" signs is the

responsibility of the owner, operator, manager or other person

having control of the indoor workplace or indoor public place;

and

(2) for each indoor workplace or indoor

public place where smoking is permitted pursuant to the Dee

Johnson Clean Indoor Air Act, a "SMOKING PERMITTED" sign shall

be posted where it is clear, conspicuous and easily legible at

each public entrance, unless an owner, operator or manager

chooses to prohibit smoking in all or part of an indoor

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workplace or indoor public place where smoking is otherwise

permitted.

B. Nothing in the Dee Johnson Clean Indoor Air Act

shall be construed so as to require the posting of signs at a

residence, except during the hours of business operation while

it is being used commercially to provide child care, adult

care or health care or any combination of those activities."

Section 8. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"ENFORCEMENT.--

A. The local fire, police or sheriff's department

with appropriate jurisdiction over the location where a

violation of the provisions of the Dee Johnson Clean Indoor

Air Act occurs shall enforce that act by issuance of a

citation.

B. A person may register a complaint regarding an

alleged violation pursuant to the Dee Johnson Clean Indoor Air

Act to initiate enforcement of that act with the department or

the local fire, police or sheriff's department.

C. The designated enforcement agencies may inspect

an establishment for compliance with the Dee Johnson Clean

Indoor Air Act."

Section 9. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"VIOLATIONS.--It is unlawful for a person who owns,

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manages, operates or otherwise controls the use of premises

subject to regulation under the Dee Johnson Clean Indoor Air

Act to violate its provisions. The owner, manager or operator

of premises subject to regulation under the Dee Johnson Clean

Indoor Air Act shall not be subject to a penalty if a person

on the premises is in violation of the Dee Johnson Clean

Indoor Air Act as long as the owner, manager or operator has

posted signs, implemented the appropriate policy and informed

the person that the person is in violation of the Dee Johnson

Clean Indoor Air Act."

Section 10. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"PENALTIES.--A person eighteen years of age or older who

violates a provision of the Dee Johnson Clean Indoor Air Act

is subject to:

A. a fine not to exceed one hundred dollars ($100)

for the first violation of that act;

B. a fine not to exceed two hundred dollars ($200)

for the second violation of that act within any consecutive

twelve-month period of the first violation; and

C. a fine not to exceed five hundred dollars

($500) for the third and each subsequent violation of that act

within any consecutive twelve-month period of a previous

violation."

Section 11. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"NONRETALIATION--NONWAIVER.--

A. A person or employer shall not discharge,

refuse to hire or in any manner retaliate against an employee,

applicant for employment or patron because that employee,

applicant or patron exercises any rights afforded by the Dee

Johnson Clean Indoor Air Act or reports or attempts to

prosecute a violation of that act.

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 12. A new section of the Dee Johnson Clean

Indoor Air Act is enacted to read:

"EXPLICIT NONPREEMPTION.--Nothing in the Dee Johnson

Clean Indoor Air Act shall be construed to preempt or in any

manner preclude specific provisions of a county or municipal

smoking ordinance; provided that the smokefree provisions of

such a county or municipal ordinance are inclusive of all

minimum standards and provisions for smokefree areas within

the Dee Johnson Clean Indoor Air Act."

Section 13. REPEAL.--Sections 24-16-5 through 24-16-11

NMSA 1978 (being Laws 1985, Chapter 85, Sections 5 through 11)

are repealed.

Section 14. SEVERABILITY.--If any part or application

of this act is held invalid, the remainder or its application

to other situations or persons shall not be affected.

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