RESTRICTIONS ON SMOKING IN PUBLIC PLACES

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.

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.

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.

	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

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.

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.


January 22, 2003		2003-R-0099
RESTRICTIONS ON SMOKING IN PUBLIC PLACES

By: John Kasprak, Senior Attorney