July 12, 2006
EXEMPTIONS FROM SMOKING BANS FOR PRIVATE CLUBS
By: John Kasprak, Senior Attorney
You asked if any states with smoking bans have exemptions for private clubs.
We examined several, but not all, states that have passed significant bans on smoking to determine if they exempt private clubs from these bans. The definition of “private club” is not uniform throughout these states. California does not provide an exemption for private clubs, although if a club is operated by volunteers receiving no compensation or personal benefit, its law is not applicable. Louisiana's law allows smoking in a few exempted areas such as stand-alone bars and casinos. Massachusetts' no smoking law bars smoking in restaurants and bars, but exempts most private clubs and fraternal organizations as long as they are closed to the public. But a recent court decision allows municipal boards of health to ban smoking in private clubs.
New Jersey's law exempts casinos, cigar bars and lounges, and tobacco retailers. Rhode Island's law originally exempted private clubs and small bars for the first 18 months of the law's implementation. But a group of restaurant and bar owners sued and a state court judge held that this temporary exemption violated the state constitution. Subsequently, the legislature passed an amendment to the law removing the exemption for private clubs and small bars.
Recently adopted Utah legislation phases in a ban on smoking in taverns and private clubs. By January 1, 2009, the ban will be in full effect. Finally, Washington's Initiative 901, passed in the November 2005 general election, provides extensive prohibitions on smoking in public places and places of employment. Whether the law applies to private clubs depends on the circumstances, such as how they are operated, what they are used for, and who is employed.
California's Smoke-Free Workplace Law provides no exemption for private clubs which include members-only clubs, clubs that collect dues, and fraternal organizations. But the law does not apply to clubs that are operated by volunteers who receive no monetary compensation and no “personal benefit” such as discounts, free services or tips (California Labor Code § 6404.5(b))
Louisiana recently passed a smoke-free workplace act (SB 742) which requires most Louisiana workplaces to be smoke-free. The law allows smoking in a few exempted areas such as stand-alone bars and casinos.
A March 2006 decision of the Massachusetts' Supreme Judicial Court held that municipal boards of health are allowed to ban smoking in private clubs. Ruling in an Athol, Massachusetts case, the court found that state law allows municipalities to impose tougher anti-smoking regulations than permitted under the 2004 statewide workplace smoking ban. The ruling affects smoking in private clubs across the state and gives municipalities broad powers to establish their own anti-smoking rules.
The 2004 state law bars smoking in restaurants and bars, but specifically exempts most private clubs and fraternal organizations as long as they are closed to the public. The state supreme court's decision overrode a decision by a Worcester Superior Court judge who had ruled in favor of an appeal by the American Lithuanian Club, an American Legion Post, and the Athol Franco American Club. These are all private organizations that challenged the Athol board of health's decision to ban smoking in charitable clubs.
The high court's majority opinion found that, while creating an exemption for clubs, the Massachusetts law did not preclude further regulation and specifically stated that local officials retained that option. The court stated that private clubs were quasi-public institutions that “are incorporated in and receive the benefit from Massachusetts laws and licenses,” thus making them subject to public health regulation. The court dismissed the clubs' allegations of civil rights violations, finding that the smoking ban was not a threat to the groups' constitutional right to assembly (Boston.com, March 23, 2006).
A number of other communities in the state had banned smoking in private clubs well before the court's decision. (Brookline, the first municipality to ban smoking in bars and restaurants in Massachusetts, banned smoking in private clubs in the mid 1990s.)
New Jersey's recently adopted “Smoke-Free Air Act” (P.L. 2005. c. 383) prohibits smoking in public places, including restaurants and bars. The legislation includes exemptions for casinos, cigar bars, cigar lounges, and tobacco retailers (see www.smokefree.nj.gov).
A “cigar bar” is any bar, or area within a bar, designated specifically for the smoking of tobacco products purchased on the premises or elsewhere. A cigar bar that is in an area within a bar must be enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system that is separately exhausted from the nonsmoking areas of the bar.
A “cigar lounge” is any establishment, or area within an establishment, designated specifically for the smoking of tobacco products purchased on the premises or elsewhere. The same wall, window, ceiling, door, and ventilation requirements described above for a cigar bar apply to a cigar lounge that is an area within an establishment.
A “tobacco retail establishment” is one in which at least 51% of retail business is the sale of tobacco products and accessories, and in which the sale of other products is merely incidental.
Rhode Island's “Public Health and Workplace Safety Act” took effect March 1, 2005. The law covers most public places and workplaces. As originally passed, this act exempted small bars and private clubs (those holding Class C and D liquor permits) until October 1, 2006 (Gen. Laws of R.I. Chapter 23-20.10 to 23-20.10-16).
In late March 2005, a Rhode Island Superior Court judge ruled that the law must be extended to prohibit smoking in all bars and private clubs. In response to a lawsuit brought by a group of restaurant and bar owners (the Neighborhood Pub Association), Judge Stephen Fortunato held that the temporary exemption provided to the small bars and private clubs violated the state constitution because there was no rational reason to treat these establishments differently than other similarly situated bars. Under the judge's ruling, smoking was immediately prohibited in all Rhode Island bars, restaurants, and private clubs. But the judge also ruled that the exemptions for the state's two gambling facilities could stand. The judge's order was in the form of a temporary restraining order which could be modified after further hearings.
Subsequently, in May 2005, the state legislature passed, and Governor Carcieri signed, a bill that removed exemptions for private clubs and small bars (P.L. 2005, Chap. 22 and P.L. 2005, Chap. 23). Rhode Island law still provides exemptions for the gambling facilities and for retail tobacco stores and smoking bars. A “smoking bar” is an establishment whose business is primarily devoted to serving tobacco products for consumption on the premises. The annual revenues generated by tobacco sales must be greater than 50% of the establishment's total revenues and serving food or alcohol may only be incidental to consumption of tobacco products.
The 2006 Utah Legislature passed Senate Bill 19, which strengthens Utah's existing Indoor Clean Air Act by eventually banning smoking in all classes of private clubs and taverns. First, taverns and Class D private clubs that receive licenses after May 15, 2006 must be smoke free. As of January 2007, all Class A, B and C private clubs must be smoke free as well. Then, on January 1, 2009, all taverns and Class D private clubs must be smoke free.
Class A includes country clubs; Class B, lodges and patriotic clubs; Class C, fine dining establishments with liquor licenses where at least 50% of the business is made through the sale of food; and Class D, private clubs where less than 50% of the business is made by selling food.
Washington's Initiative 901, passed in the November 2005 general election, amends Washington's Clean Indoor Air Act to prohibit smoking in all public places and places of employment as well as 25 feet from any entrance, exit, opening window, or ventilation intake at a public place or place of employment. According to the initiative's text, its intent is to protect the public and workers from second-hand smoke by prohibiting smoking in all public places and places of employment.
Under the initiative, a “public place” where smoking is prohibited is any part of a building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned by a public or private entity. It also includes the 25 foot boundary area described above. Unlike prior Washington law, “public place” now includes bars, bowling alleys, non-tribal casinos, and similar businesses.
The issue of whether the new law applies to private clubs (e.g. yacht clubs, country clubs, and fraternal organizations) depends on the circumstances. When clubs are operated privately, employ no staff, and are not open to the public, smoking is permitted, according to the Washington State Department of Health. However, if a private club is used for a public function or the private club has employees, then the smoking prohibition applies.