As Introduced

127th General Assembly Regular Session 2007-2008

S. B. No. 346

Senator Schuler 

Cosponsors: Senators Buehrer, Cafaro, Cates, Grendell, Mumper, Niehaus, Padgett, Roberts, Schaffer, Seitz, Smith, Spada 

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A BILL

To amend sections 3794.01 and 3794.03 of the Revised

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Code regarding smoking ban exemptions involving

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family-owned businesses, outdoor patios, and

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private clubs.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 3794.01 and 3794.03 of the Revised	5
Code be amended to read as follows:	6

Sec.3794.01.Definitions.

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As used in this chapter:

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(A) "Smoking" means inhaling, exhaling, burning, or carrying	9
any lighted cigar, cigarette, pipe, or other lighted smoking	10
device for burning tobacco or any other plant. "Smoking" does not	11
include the burning of incense in a religious ceremony.	12

(B) "Public place" means an enclosed area to which the public	13
is invited or in which the public is permitted and that is not a	14
private residence.	15

(C) "Place of employment" means an enclosed area under the	16
direct or indirect control of an employer that the employer's	17
employees use for work or any other purpose, including but not	18
limited to, offices, meeting rooms, sales, production and storage	19
areas, restrooms, stairways, hallways, warehouses, garages, and	20
vehicles. An enclosed area as described herein is a place of	21
employment without regard to the time of day or the presence of	22
employees.	23

(D) "Employee" means a person who is employed by an employer,	24
or who contracts with an employer or third person to perform	25
services for an employer, or who otherwise performs services for	26
an employer for compensation or for no compensation.	27

(E) "Employer" means the state or any individual, business,	28
association, political subdivision, or other public or private	29
entity, including a nonprofit entity, that employs or contracts	30
for or accepts the provision of services from one or more	31
employees.	32

(F) "Enclosed Area" means an area with a roof or other	33
overhead covering of any kind and walls or side coverings of any	34
kind, regardless of the presence of openings for ingress and	35
egress, on all sides or on all sides but one.	36

(G) "Proprietor" means an employer, owner, manager, operator,	37
liquor permit holder, or person in charge or control of a public	38
place or place of employment.	39

(H) "Retail tobacco store" means a retail establishment that	40
derives more than eighty percentper cent of its gross revenue	41
from the sale of cigars, cigarettes, pipes, or other smoking	42
devices for burning tobacco and related smoking accessories and in	43
which the sale of other products is merely incidental. "Retail	44
tobacco store" does not include a tobacco department or section of	45
a larger commercial establishment or of any establishment with a	46
liquor permit or of any restaurant.	47

(I) "Outdoor patio" means an area that is either: enclosed by	48
a roof or other overhead covering and walls or side coverings on	49
not more than two sides; or has no roof or other overhead covering	50
regardless of the number of walls or other side coverings.	51

Sec.3794.03.Areas where smoking is not regulated by this	52
chapter.	53

The following shall be exempt from the provisions of this	54
chapter:	55

(A) Private residences, except during the hours of operation	56
as a child care or adult care facility for compensation, during	57
the hours of operation as a business by a person other than a	58
person residing in the private residence, or during the hours of	59
operation as a business, when employees of the business, who are	60
not residents of the private residence or are not related to the	61
owner, are present.	62

(B) Rooms for sleeping in hotels, motels and other lodging	63
facilities designated as smoking rooms; provided, however, that	64
not more than twenty percentper cent of sleeping rooms may be so	65
designated.	66

(C) Family-ownedA family-owned and operated placesplace of	67
employment in which all employees are related to the owner, but	68
only if the enclosed areas of the place of employment are not	69
open to the public, are in a free standing structure occupied	70
solely by the place of employment, and smoke from the place of	71
employment does not migrate into an enclosed area where smoking	72
is prohibited under the provisions of this chapter.	73

As used in this division, "family-owned and operated place of	74
employment" means a business or corporate structure to which all	75
of the following apply:	76

(1) The business or corporate structure is not publicly owned	77
or traded.	78

(2) The business or corporate structure has a president or	79
chief operating officer who comes from a family having controlling	80
interest in the business or corporate structure.	81

(3) The business or corporate structure is located in a	82
freestanding structure or is separated from any other business by	83
a firewall.	84

(D) Any nursing home, as defined in division (A) of section	85
3721.10(A) of the Revised Code, but only to the extent necessary	86
to comply with division (A)(18) of section 3721.13(A)(18) of the	87
Revised Code. If indoor smoking area is provided by a nursing home	88
for residents of the nursing home, the designated indoor smoking	89
area shall be separately enclosed and separately ventilated so	90
that tobacco smoke does not enter, through entrances, windows,	91
ventilation systems, or other means, any areas where smoking is	92
otherwise prohibited under this chapter. Only residents of the	93
nursing home may utilize the designated indoor smoking area for	94
smoking. A nursing home may designate specific times when the	95
indoor smoking area may be used for such purpose. No employee of a	96
nursing home shall be required to accompany a resident into a	97
designated indoor smoking area or perform services in such area	98
when being used for smoking.	99

(E) Retail tobacco stores as defined in division (H) of	100
section 3794.01(H) of this chapterthe Revised Code in operation	101
prior to the effective date of this sectionDecember 7, 2006. The	102
retail tobacco store shall annually file with the department of	103
health by the thirty-first day of January thirty first an	104
affidavit stating the percentage of its gross income during the	105
prior calendar year that was derived from the sale of cigars,	106
cigarettes, pipes, or other smoking devices for smoking tobacco	107
and related smoking accessories. Any retail tobacco store that	108
begins operation after the effective date of this sectionDecember	109
7, 2006, or any existing retail tobacco store that relocates to	110
another location after the effective date of this sectionDecember	111
7, 2006, may only qualify for this exemption if located in a	112
freestanding structure occupied solely by the business and smoke	113
from the business does not migrate into an enclosed area where	114
smoking is prohibited under the provisions of this chapter.	115

(F) Outdoor patios as defined in Section 3794.01(I) of this	116
chapter. All outdoor patios shall be physically separated from an	117
enclosed area. If windows or doors form any part of the partition	118
between an enclosed area and the outdoor patio, the openings	119
shall be closed to prevent the migration of smoke into the	120
enclosed area. If windows or doors do not prevent the migration	121
of smoke into the enclosed area, the outdoor patio shall be	122
considered an extension of the enclosed area and subject to the	123
prohibitions of this chapterAn outdoor patio.	124

As used in this division, "outdoor patio" means any area not	125
enclosed with permanent walls, that does not function as a	126
parking lot, and is attached or immediately adjacent to the	127
permanent structure of a building, except that in the case of a	128
community-based correctional facility developed pursuant to	129
Chapter 2301. of the Revised Code or a facility licensed under	130
section 2967.14 of the Revised Code, "outdoor patio" includes an	131
area that is immediately adjacent to the permanent structure of	132
the facility, has at least one side of the enclosure consisting of	133
one wall of the facility, and is otherwise enclosed with a fence	134
or other material used for security purposes.	135

(G) Private clubs as defined in division (B)(13) of section	136
4301.01(B)(13) of the Revised Code, provided all of the following	137
apply: the club has no employees;that the club is organized as a	138
not-for-profit entity; only members of the club are present in the	139
club's building; no persons under the age of eighteen are present	140
in the club's building; the club is located in a freestanding	141
structure occupied solely by the club; smoke from the club does	142
not migrate into an enclosed area where smoking is prohibited	143
under the provisions of this chapter;, and, if the club serves	144
alcohol, it holds a valid D4 liquor permit.	145

Section 2. That existing sections 3794.01 and 3794.03 of the	146
Revised Code are hereby repealed.	147