Topic:
SMOKING;
Location:
SMOKING;

OLR Research Report


January 22, 2003

 

2003-R-0099

RESTRICTIONS ON SMOKING IN PUBLIC PLACES

By: John Kasprak, Senior Attorney

You asked for information on other states' laws on smoking in restaurants and other public places. You also are interested in preemption provisions in other states.

SUMMARY

Almost all states have some smoke-free laws, but their scope varies a great deal from limited restrictions on public transportation to comprehensive bans in public places. California and Delaware have comprehensive bans on smoking in all public places, including restaurants. At least 34 states and the District of Columbia impose some type of restriction on smoking in restaurants. Five states (California, Delaware, Maine, Oregon and Utah) ban it entirely. As best we can determine, 18 states have a preemption provision in law, which prevents local jurisdictions from enacting more stringent restrictions that vary from state law.

STATES' RESTRICTION OF SMOKING IN PUBLIC PLACES

To date, two states, California (1995) and Delaware (2002) have instituted comprehensive bans on smoking in all public places, including restaurants, bars and gaming facilities, government facilities, public transit, retail and grocery stores, schools, and other public places. Many city and county governments have done so for such establishments within their jurisdictions.

On November 5, 2002, Florida voters passed a constitutionally mandated ban on smoking; it must include indoor workplaces, including restaurants and in-home child and elder care facilities. The law would exempt private residences, stand-alone bars, tobacco shops, and designated guest rooms in hotels. “Amendment 6” officially became part of the Florida Constitution on January 7, 2003. The Florida Legislature must enact implementing legislation to enforce compliance effective no later than July 1, 2003.

At least 18 states have a preemption provision. This means that they have a provision in state law that prevents local jurisdictions from enacting more stringent restrictions that vary from the state law. (Table 2 below provides more detail on preemption and restaurant smoking laws on a state-by-state basis).

Table 1 summarizes state laws restricting smoking through 2001, except for the restaurant category, which is current through 2002.

TABLE 1: STATE LAWS RESTRICTING SMOKING, 2001

 

R

P

V

N

Arts/Cultural Facilities

27

6

 

17

Child Care Centers

13

23

3

11

Elevators

8

27

 

15

Government Buildings

38

5

1

6

Gyms/Arenas

29

2

 

19

Health Facilities

39

1

2

8

Jury/Courtrooms

8

4

 

38

Public Meetings

15

7

 

28

Public Transit

15

21

 

14

Restaurants*

31

5

 

14

Restrooms

7

5

 

38

Retail/Grocery Stores

24

5

 

21

Schools

22

24

 

4

Private Workplaces

20

1

2

27

R=Restriction Required (smoking only in designated areas)

P=Smoking Prohibited

V=Enclosed Ventilated Area Required or Smoking Is Banned Entirely

N=None

*Updated through 2002; Florida situation incomplete

Sources: National Conference of State Legislatures and American Lung Association

STATES' RESTRICTIONS ON SMOKING IN RESTAURANTS

At least 34 states and the District of Columbia impose some type of restrictions on smoking in restaurants, according to a recent American Lung Association report. Of these, five states have an outright ban on smoking in restaurants (California, Delaware, Maine, Oregon, and Utah). Because of the Florida situation (the constitutional amendment discussed above), we have not counted it towards the state totals.

TABLE 2: STATE RESTRICTIONS ON SMOKING IN RESTAURANTS AND PREEMPTION

State

Restricts

Smoking in Restaurants

Preemption

Alabama

No

No

Alaska

Yes

No

Arizona

No

No

Arkansas

No

No

California

Yes (Ban)

No

Colorado

No

No

Connecticut

Yes

Yes

Delaware

Yes (Ban)

No

District of Columbia

Yes

No

Florida

I*

I*

Georgia

No

Yes

Hawaii

Yes

No

Idaho

Yes

No

Illinois

Yes

Yes

Indiana

No

No

Iowa

Yes

No

Kansas

Yes

No

Kentucky

Yes

No

Louisiana

Yes

Yes

Maine

Yes (Ban)

No

Maryland

Yes

No

Massachusetts

Yes

No

Michigan

Yes

Yes

Minnesota

Yes

No

Mississippi

No

Yes

Missouri

Yes

No

Montana

Yes

No

Nebraska

Yes

No

Nevada

Yes

Yes

New Hampshire

Yes

No

New Jersey

Yes

Yes

New Mexico

No

No

New York

Yes

No

State

Restricts

Smoking in Restaurants

Preemption

North Carolina

No

Yes

North Dakota

Yes

No

Ohio

Yes

No

Oklahoma

Yes

Yes

Oregon

Yes (Ban)

Yes

Pennsylvania

Yes

Yes

Rhode Island

Yes

No

South Carolina

No

Yes

South Dakota

Yes

Yes

Tennessee

No

Yes

Texas

No

No

Utah

Yes (Ban)

Yes

Vermont

Yes

No

Virginia

Yes

Yes

Washington

Yes

Yes**

West Virginia

No

No

Wisconsin

Yes

No

Wyoming

No

No

Source: American Lung Association, “State of Tobacco Control: 2002” (January 2003).

*Florida is cited as “I” (incomplete) because of constitutional amendment situation.

**The Washington state Attorney General's Office has issued an informal opinion stating that the Washington State Clean Indoor Air Act does imply preemption.

JK:ts